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R.  H.  F.  VARIEL,  JH, 

628  I.  W.  HELLMAN  BLOa. 

LOS  ANGELES.  C'  i.. 


JAN  30  1911 


1540 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


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COWDERT^S 
NEW   BOOK   OF   FORMS, 

BKING 

LEGAL   FORMS  AND    PRECEDENTS 

FOR 

COUTtT  PEOCEEDINGS  AND  BUSINESS 
TRANSACTIONS, 

ELABORATELY    ANNOTATED. 


Especially  Adapted  to  the  Codes  and  Statutes  of  Alaska, 

Arizona,  California,  Colorado,  Idaho,  Montana, 

Nevada,   New   Mexico,   North   Dakota, 

Oregon,    South    Dakota,   Utah, 

Washington  and  Wyoming. 


(ThU   Is  a  now   and   enlarged   edition   of   Cowdery's   Forms    and    Pi^c«^pnts,    and   con- 
tains  sixieen  hundred  forms,   over  six  hundred  of  which  aie  euUic-ly   new.) 


BY 

JABEZ    V.    COWDERY, 

I .  t 

Of   the   San   Francisco   Bar. 

Author  of  "Cowdery's   Forms   and   Prooodenta,' 
' '  Cowdcry  's  Justice  Treatise, ' '  etc 

SAN     FRANCISCO: 

BANCROFT-WHITNEY  COMPANY, 

Law   Publishers   and  Law  Booksellers. 
1906. 


Copyright,   1905. 

BY 

BANCROFT-WHITNEY  COMPANY. 


San  Fbancisco: 

Thb  Filmek  Beothees  Electeotype  Company, 

Typographers  and  Stereotypers. 


COWDERY'S 
NEW   BOOK  OE   EORIVIS. 

PABTICTJLARLY    ADAPTEUS    FOR    USE    IN 

ALASKA,  MONTANA,  SOUTH  DAKOTA, 

ARIZONA,  NEVADA,  UTAH, 

CALIFORNIA.  NEW  MEXICO,  WASHINGTON, 

COLORADO,  NORTH    DAKOTA,  WYOaUNG. 

IDAHO,  OREGON, 


PART  FIRST.— MISCELLANSCUS. 


ACKNOWLEDGMENT  AND    PROOF    OF    IN- 
STRUMENT. 

Classes  of  Officers  and  Who  may  Take. — In  California 
nine  classes  of  officers  may  take  acknowledgment  and  proof  of 
the  execution  of  written  instruments,  to  wit :  Seven  justices  of 
the  supreme  court ;  eighty-nine  judges  of  the  superior  courts ; 
thirty  police  judges;  four  hundred  justices  of  the  peace;  two 
thousand  notaries ;  eighty-nine  court  commissioners ;  fifty- 
eig-ht  county  clerks,  with  their  deputies,  fifty-eight  county  re- 
corders, with  their  deputies;  in  all,  about  3,211.  In  the  other 
states  and  territories  to  which  this  book  is  applicable  there  are, 
it  is  estimated,  ten  thousand  officers  having  the  same  authority 
— 13.211  in  all.  The  imporance  of  the  subject  seems  to  justify 
the  fullness  of  its  treatment. 

Section  179  of  the  California  Code  of  Civil  Procedure  author- 
izes each  justice  of  the  supreme  court,  the  judges  of  the  superior 
courts  in  any  part  of  the  state,  and  every  justice  of  the  peace,  and 
a  judge  of  a  police  or  other  inferior  court  in  his  county  or  city 
and  county,  to  take  proof  or  acknowledgment  of  a  conveyance  of 
real  property  or  other  written  instrument.  In  conferring  similar 
power  to  other  officers  in  Civil  Code,  the  word  "instrument" 
only  is  used,  and  also  as  to  notaries  in  the  Political  Code. 

What  Instruments  must  be  Acknowledged  or  Proved. — 
All  grants,  mortgages  and  deeds  of  trust  must  be  to  entitle  them 
to  record  (C.  C,  sees.  1158-1165)  ;  apprenticeship  contracts 
(Id.,  sec.  275 ;  assignm-ent  for  the  benefit  of  creditors  (Id., 
sec.  3458);  declaration  of  marriage  (Id.),  sec.  Tj)  \  certificate 
of  redemption  (C.  C.  P.,  sec.  703)  ;  satisfaction  of  judgment 
.written  (Id.,  sec.  675)  ;  sales  of  wine  in  certain  cases  (C.  C, 
sec.  3440)  ;  declaration  of  homestead  (C.  C,  sees.  1262,  1266)  ; 
grant  of  homestead  (Id.,  sec.  1242)  ;  declaration  of  abandon- 
ment of  homestead  (C.  C,  sec.  1243)  ;  formation  of  partnership 
New  Forms — 1 


gov: 


2  New  Book  of  Forms. 

(Id.,  sec.  2480)  ;  inarriao:e  settlement  (Id.,  sees.  178,  180)  ;  in, 
ventory  of  wife's  separate  property  (Id.,  sec.  165)  ;  articles  of 
iucorporatiou  (Id.,  sec.  292)  ;  illegitimate  child,  declaration  that 
it  is,  by  parent  (Id.,  sec.  1387)  ;  all  instruments  in  writing  exe- 
cuted bv  a  prisoner  confined  in  a  state  penitentiary  (Act  of  May 
6,  1862,' Stats.,  p.  496). 

What  Writings  may  be  Acknowledged  or  Proved. — Every 
private  writing,  except  last  wills  and  testaments,  may  be  ac- 
knowledged or  proved  and  certified  in  the  manner  provided  for 
the  acknowledgment  or  proof  of  conveyances  of  real  propertj% 
and  the  certificate  of  such  acknowledgment  or  proof  is  prima 
facie  evidence  of  the  execution  of  the  writing  in  the  same  man- 
ner as  if  it  were  a  conveyance  of  real  property :  Cal.  C.  C.  P.,  sec. 
1948. 

An  attachment  writ  is  a  written  instrument  signed  by  the  clerk 
of  a  court  or  a  justice  of  the  peace  running  in  the  name  of  the 
people  of  the  state  of  California,  and  is  delivered  to  an  officer  of 
the  law  with  instructions  to  seize  and  hold  the  property  of  a 
person  named  in  it  to  secure  the  payment  of  a  debt  he  is  alleged 
to  owe  the  plaintiff  in  the  action  in  which  the  writ  is  issued.  It 
becomes  a  lien  upon  the  property  attached.  In  Hoag  v.  Howard, 
55  Cal.  564,  it  was  contended  that  an  attachment  was  an  instru- 
ment that  took  precedence  of  an  unrecorded  deed.  The  court 
held  that  it  did  not.  It  said  that  if  the  code  is  examined  it  will 
be  invariably  found  that  the  word  ' '  instrument ' '  is  used  to  indi- 
cate a  written  paper  signed  and  delivered,  transferring  title  to 
or  creating  a  lien  on  property,  or  giving  a  right  to  a  debt  or  duty. 

When  Hoag  v.  Howard  was  decided  it  was  apparently  consid- 
ered upon  the  theory  that  each  code  was  a  law  by  itself,  and  for 
that  reason  all  references  were  to  the  Civil  Code  sections  refer- 
ring to  ' '  instruments. ' '  At  the  present  writing  all  the  codes  are 
construed  together  as  one  writing,  and  all  are  therefore  of  equal 
importance,  and  never  conflict  with  one  another  as  separate  laws 
sometimes  do.  Up  to  this  point  what  has  been  said  is  prelimi- 
nary  to  considering  what  is  an  "instrument"  that  may  be  ac- 
knowledged or  proved.  Many  cases  will  be  cited  which  refer  es- 
pecially to  acknowledgment  of  instruments,  but  no  California 
case  has  been  found  which  refers  to  proofs  of  the  execution  of  in-i 
struments  except  in  an  inferential  manner. 

No.  1. — General  Statutory  Form — California,  Idaho,  Montana, 
North  and  South  Dakota,  Oregon. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

On  this  -2d  day  of  March,  in  the  year  1905,  before  me  [here 
insert  name  and  quality  of  the  officer] ,  personally  appeared  A.  B., 


Amcnovvxedcment  and  Proof  op  Instrument.  3 

known  to  me  [or  proved  to  me  on  the  oath  of  C.  D.]  to  be  the 
person  whose  name  is  subscribed  to  the  within  instrument,  and 
acKnowledged  that  he  [she  or  they]  executed  the  same. 

NOTE.— California,  C.  C,  sec.  1189;  Idaho,  C.  C,  see.  2427  (except 
aa  to  married  women:  See  Forms,  post);  Montana,  C.  C,  sec.  1609;  North 
Diikota,  C.  C,  sec.  35S4;  South  Dakota,  C.  C,  sec.  981;  Oregon  Codes 
and  Statutes,  sees.  5343-5345,  5549.  It  is  also  provided,  that  when  an 
acknowledgment  is  not  taken  in  California  and  is  taken  in  accordanee 
with  the  laws  cf  the  place  where  it  is  made  it  is  sufficient  in  California, 
provided  that  the  certificate  of  the  clerk  of  a  court  of  record  of  the 
county  or  district  where  it  is  taken  that  the  officer  certifying  is  author- 
ized to  do  so,  and  that  the  signature  of  the  officer  to  certificate  is  his  true 
signature,  and  that  such  acknowledgment  is  taken  in  accordance  with 
the  laws  of  the  place  where  made,  is  prima  facie  evidence  of  the  facts 
stated  in  the  certificate:  Id.,  sec.  1189.  This  provision  is  applicable  to 
Idaho,  C.  C,  sec.  2427;  Montana,  C.  C,  sec.  1609;  North  Dakota,  C.  C^ 
sec.  3584;  South  Dakota,  C.  C,  sec.  981;  Alaska,  Arizona,  Colorado, 
Wyoming,  Nevada,   Colorado,   Oregon.     See   Forms,   post,   for  all   others. 

No.    2. — Statutory    Form — Corporations — California. 

State  of  California, 

Ctty  and  County  of  San  Francisco, — ss. 

On  this  third  day  of  August  in  the  year  one  thousand  nine  hun- 
dred and  six,  before  me,  A.  B.,  a  notary  pubHc  in  and  for  the 
said  city  and  county,  personally  appeared  C.  M.  B.,  known  to  me 
to  be  the  president  of  the  corporation  described  in  and  that  exe- 
cuted the  within  instrument,  and  also  known  to  me  to  be  the  per- 
son who  executed  it  on  behalf  of  the  corporation  therein  named, 
and  he  acknowledged  to  me  that  such  corporation  executed  the 
same. 

NOTE.— California.  C.  C,  see.  1190  (Stats.  1905,  p.  603).  The  ac- 
knowledgment of  an  instrument  must  not  be  taken  unless  the  officer  tak- 
ing it  has  satisfactory  evidence,  on  the  oath  or  affirmation  of  a  credible 
witness,  that  the  person  making  such  acknowledgment  is  the  individual 
who  is  described  in  and  who  executed  the  instrument,  or  if  executed 
by  a  corporation,  that  the  person  making  such  acknowledgment  is  the 
president  or  secretary  of  such  corporation,  or  other  person  who  exe- 
cuted it  on  its  behalf:  Id.,  sec.  1185;  Amendment  of  1905,  Stats.,  p.  603. 

No.      3. — Statutory      Form — Corporation — Idaho,      Montana, 
Utah,  North  and  South  Dakota,  Oregon. 

State  of  Idaho, 
County  of  Ada, — ss. 

On  this  third  day  of  June,  in  the  year  7005,  before  me  [here 
insert  the  nwne  and  qualify  of  the  officer],  personally  appeared  A. 
B.,  known  to  me  [or  proved  to  mc  on  the  oath  of  C.  D.,]  to  be 
the  president  [or  the  secretary]  of  the  corporation  that  executed 
the  within  instrument,  and  acknowledged  to  me  that  such  cor- 
poration executed  the  same. 


4  New  Book  of*  Forms. 

NOTE.— Idaho,  C.  C,  sec.  2428;  Montana,  C.  C,  see.  1610;  North 
Dakota.  C.  C,  sec.  3584;  South  Dakota,  C.  C,  sec.  981;  Utah,  Eev.  Stats., 
sec.  1981 ;  Oregon  Codes  and  Statutes,  sees.  5343-5349.  See  Porms,  post, 
for  all  others. 

No.  4- — Statutory  Form — Attorney  in  Fact — California,  Idaho, 
Montana,  North  and  South  Dakota,  Oregon. 

State  of  California, 
County  of  Yuba, — ss. 

On  this  tJiird  day  of  June,  in  the  year  IQO^,  before  me  [here 
insert  the  name  and  quality  of  the  officer],  personally  appeared  A. 
B.,  known  to  me  [or  proved  to  me  on  the  oath  of  C.  £>.],  to  be 
the  person  whose  name  is  subscribed  to  the  within  instrument  as 
the  attorney  in  fact  of  A.  B.,  and  acknowledged  to  me  that  he 
subscribed  the  name  of  C.  D.  thereto  as  principal,  and  his  own 
name  as  attorney  in  fact. 

NOTE.— California,  C.  C,  sec.  1192;  Idaho,  C.  C,  sec.  2430;  Mon- 
tana, C.  C,  sec.  1612;  North  Dakota,  C.  C,  sec.  3584;  South  Dakota,  C. 
C,  see.  980;  Oregon  Codes  and  Statutes,  sees.  5343-5349.  See  Forms, 
post,  for  all  others. 

No.  5. — Statutory  Form — Prisoner  Confined  in  State  Peniten- 
tiary— California. 

State  of  California, 
County  of  Marin, — ss. 

On  this  5c?  day  of  June,  A.  D.  ipo6,  before  me,  A.  B.,  a  notary 
pubHc  in  and  for  the  county,  of  Marin,  state  of  California,  per- 
sonally appeared  C.  D.,  a  prisoner  confined  in  the  State  Peniten- 
tiary* at  San  Qiientin,  Marin  county,  in  the  state  of  California, 
to  me  known  to  be  the  person  whose  name  is  subscribed  to  and 
who  executed  the  annexed  instrument,  and  I  certify  that  I  made 
him  acquainted  with  the  contents  of  said  instrument  and  then  ex- 
amined him  separate  and  apart  from  all  persons,  and  he,  while  so 
separate  and  apart,  acknowledged  to  me  that  he  executed  the 
same  freely,  voluntarily,  and  without  fear  or  compulsion,  or  un- 
due influence,  and  for  the  purpose  therein  mentioned ;  and  I  fur- 
ther certify  that  I  called  upon  A.  L.  C,  and  H.  M.  A.,  two  repu- 
table and  disinterested  persons,  to  witness  the  exectition  of  said  in- 
strument. 

Witness :  A.  L.  G. 
H.  M.  A. 


♦Under  the  law  certain  prisoners  are  deemed  civilly  dead;  but  under 
the  codes  they  are  capable  of  making  and  acknowledging  a  sale  or  con- 
veyance of  real  property:   Pen.  Code,  sees.   673-675. 

An  act  entitled  "An  act  concerning  conveyances,"  approved  May  6, 
1862,  permits  such  acknowledgments  and  states  what  facts  the  certifi- 
cate shall  set  forth,  and  requires  it  to  be  witnessed  by  two  reputable 
and  disinterested  witnesses:   Stats.   1862,  p.  496. 


ACKNOWXEDGMENT   AND    PrOOF   OP    INSTRUMENT,  5 

General  Note  to  Forms  i,  2,  3,  4,  5. 
Under  this  head  is  collected  many  well-considered  cases  relat- 
ing to  the  duty  and  liability  of  public  officers  having  authoriiv  to 
take  and  certify  acknowledgments  and  proof  of  the  execution  of 
written  instruments.  Such  responsibility  is  much  greater  tlian  it 
is  generally  thought  to  be  until  an  important  mistake  in  the  exe- 
cution of  an  instrument  is  made  and  discovered. 

Every  lawyer  of  much  experience  knows  that  grave  mistakes 
in  such  matters  are  of  daily  occurrence,  but  are  seldom  discov- 
ered. 

Every  notary  public  ought  to  be,  but  seldom  is,  as  familiar  with 
the  law  as  adjudicated  in  the  following  notes  as  he  sometimes  i? 
u^ith  the  statutes  relating  to  his  duties.  The  statute  of  limita- 
tions is  the  savior  of  ignorance  and  mistake. 

Acknowledgrment  and  Proof  of  the  Execution  of  Instruments,  Gener- 
ally-— The  act  of  a  notary  in  taking  an  ackuowledguuut  of  an  instru- 
ment is  not  judicial:  Bank  of  Woodland  v.  Oberhaus,  125  Cal.  32U,  57 
Pac.  1070.  The  object  is  to  entitle  it  to  be  used  as  evidence  without 
further  proof;  without  especially  referring  to  it,  the  court  clearly  had 
in  mind  section  1948  of  the  Code  of  Civil  Procedure,  and  Gordon  v. 
City  of  San  Diego,  108  Cal.  264,  41  Pac.  301.  In  Farmers'  Bank  v. 
Purdy,  130  Cal.  457,  62  Pac.  738,  Mr.  Cooper,  commissioner,  in  wi-iting 
the  opinion  of  the  court,  said:  "The  only  object  of  an  acknowledgment 
is  that  the  instrument  may  be  recorded,  unless  the  acknowledgment  ia 
by  statute  made  essential  to  the  validity  of  the  instrument,"  and  re- 
fers to  Civil  Code,  sections  1091,  1217,  which  section  is  not  entirely 
in  harmony  with  what  was  said  in  deciding  Gordon  v.  City  of  San 
Diego,  above  cited.  Acknowledgment  certificjites  and  proofs  of  ac- 
knowledgment are  only  prima  facie  true,  if  it  is  shown  that  the  per- 
son named  in  the  instrument  did  not  appear  before  the  officers  who 
signed  the  certificate.  In  such  case,  the  acknowledgment  is  void:  Mes- 
nager  v.  Hamilton,  101  Cal.  532,  40  Am.  St.  Eep.  81,  35  Pac.  1054. 

Acknowledgment  as  Estoppel. — If  the  person  named  as  grantor  per- 
sonally apjiears  before  a  notary  and  acknowledges  the  signature  at- 
tachfd  to  the  instrument  as  his  own,  he  is  estopped  from  denying  his 
declaration,  as  well  as  his  signature:  Blasedell  v.  Leach,  101  Cal.  405, 
40  Am.  St.  Rep.  65,  35  Pac.  1019.  In  that  case  the  grantor  did  ajipear 
before  the  notary,  did  acknowledge  lier  signature,  and  did  acknowledge 
that  she  executed  it,  but  thereafter  it  was  discovered  that  the  instru- 
ment was  a  grant  instead  of  a  lease,  wiiich  she  thouglit  it  was,  and  it 
was  held  that  if  others  had  innocently  intervened,  the  declarations  made 
before   the   notary   estopped   the   grantor   from   denying  the   grant. 

Disqualification  of  Officer  Taking  Acknowledgment. — Officers  taking 
acknowledgments  are  not  disqualified  because  they  are  agents  of  parties 
to  instruments  unless  pecuniarily  interested  in  the  transaction:  Bank  of 
Woodland  v.  Oberhaus,  125  Cal.  320.  57  Pac.  1070.  If  the  grantee  is  a 
notary  and  takes  the  acknowledgment,  the  deed  is  void;  but  if  there 
are  several  grantees  named  in  the  grant  with  him,  each  taking  a  sep- 
arate, definite  interest,  the  grant  passes  title  to  them,  and  the  notary 
takes  nothing  but  his  fee:  Murrav  v.  Tulare  Irr.  Co.,  120  Cal.  311,  49 
Pac.  563,  52  Pac.  586. 

Identicr^  Names. — If  the  name  of  the  notary  who  took  the  acknowledg- 
ment nnd  'ii>  name  of  the  mortgagee  in  a  mortgage  are  identical,  and 
if  made  in  the  county  of  the  residence  of  both  parties,  it  will  be  pre- 
sumed that  the  notary  and  mortgagee  were  the  same  porson.     Such  ac- 


6  New  Book  of  Forms. 

knowledgraent  is  void,  and  the  record  of  it  does  not  impart  eonstmctive 
notice  to  third  parties:  Lee  v.  Murpliy,  119  Cal.  364,  51  Pae.  549,  955. 
As  to  the  Venue. — The  venue  is  to  show  that  the  official  act  is  within 
the  territorial  jurisdiction  of  the  officer.  If  a  certificate  of  acknowledg- 
ment is  taken  before  a  justice  of  the  peace  of  another  county  as  pro- 
vided in  section  1194  of  Civil  Code,  a  certificate  of  the  county  clerk  must 
accompany  it  showing  that  when  the  acknowledgment  was  taken  he  was 
a  justice  of  the  peace  of  the  venue  county.  If  taken  out  of  the  county 
where  he  is  justice  of  the  peace,  his  act  is  void:  Middlecoff  v.  Hemstreet, 
135  Cal.   173,  67  Pac.  768. 

Unacknowledged  Grants. — Except  as  to  the  right  of  the  grantee  to 
record  it,  and  thereby  give  notice  to  subsequent  encumbrancers  and  pur- 
chasers, an  unacknowledged  grant  (except  also  as  to  a  person  under 
disability)  is  as  good  as  any  other.  This  is  upheld  in  Hastings  v.  Vaugh, 
5  Cal.  315:  Ricks  v.  Reed,  19  Cal.  515;  Grant  v.  OUver,  91  Cal.  158,  27 
Pac.  596,  861. 

Presumptions  as  to  Acknowledgments  and  Proofs. — A  certificate  of  ac- 
knowledgment is  conclusive  unless  there  is  fraud,  duress  and  imposition 
in  connection  with  it,  and  unless  the  gi'antee  was  a  party  to  it  or  had 
notice  of  it:  Grant  v.  White,  57  Cal.  489;  Do  Arnaz  v.  Escandon,  59  Cal. 
486.  It  is  always  presumed  that  it  states  the  facts:  Baldwin  v.  Born- 
heimer,  48  Cal.  433. 

The  above  rules  do  not  apply  to  deeds  executed  by  married  women. 
In  such  instances  the  acknowledgment  or  proof  is  onlv  prima  facie  true: 
Moore  v.  Hopkins,  83  Cal.  270,  17  Am.  St.  Rep.  248,  23  Pac.  318  (which 
is   not   gallant). 

raise  or  Defective  Certificate — Damages. — Officers  taking  acknowl- 
edgments, by  the  same  rule,  are  liable  in  damages  for  failure  to  perform 
their  duty  with  integrity,  diligence  and  skill:  Fogarty  v.  Finley,  10  Cal. 
239.  A  notary  certified  that  the  person  who  acknowledged  before  him 
the  execution  of  a  mortgage  was  known  to  be  the  person  whose  name 
was  subscribed  thereto,  which  was  not  true;  but  the  person  who  made 
the  acknowledgment  was  introduced  to  the  notary  as  the  mortgagor 
by  an  agent  of  the  plaintiff  in  the  action  to  recover  damages  because  of 
his  negligence;  held  that  the  notary  was  not  responsible:  Overacre  v. 
Blake,  82  Cal.  77,  22  Pae.  979. 

If  a  notary  certifies  that  he  knows  a  person  whom  he  does  not  know, 
he  is  liable,  unless  the  negligence  of  the  accusing  party  is  the  proxi- 
mate cause  of  the  loss,  which  was  the  case  in  Overacre  v.  Blake.  See, 
also,  Hatton  v.  Holmes,  97  Cal.   208,  31  Pac.   1131. 

Murfey  was  a  notary — Lcroy  was  a  cheat.  Leroy  introduced  h'm- 
self  to  the  notary  as  N.  B.  West.  The  true  N.  B.  West  owned  land. 
Leroy  employed  the  notary  to  draw  a  deed  from  N.  B.  West  to  H^nry 
Harmon,  which  was  done.  Leroy  signed  and  acknowledged  the  deed 
"N.  B.  West."  The  notary  attached  his  certificate  of  acknowledgment 
and  his  seal,  all  in  good  form.  Leroy,  assuming  to  be  Henry  Harmon, 
went  to  Oakland  Bank  of  Savings,  presented  his  deed,  and  represented 
himself  to  be  Henry  Harmon,  grantee  of  N.  B.  West,  and  the  bank  loaned 
him  money,  secured,  as  it  supposed,  by  a  mortgage  on  the  land  described 
in  the  deed.  The  bank  made  the  loan  without  inquiring  as  to  the  iden- 
tity of  anybody  connected  with  the  iffair.  It  sued  Notary  Murfey  and 
lost,  because  the  negligence  of  Murfey  (if  he  was  negligent  at  all)  was 
not  the  direct  cause  of  the  bank's  loss:  Oakland  Bank  of  Savings  v. 
Murfey,  68  Cal.  455,  9  Pac.  843. 

Negligence  not  Direct  Cause  of  Loss. — As  to  a  notary 's  negligence  not 
being  the  direct  cause  of  loss,  see  Hatton  v.  Holmes,  97  Cal.  208,  31  Pac. 
1131. 

Meastire  of  Damages. — The  measure  of  damages  against  a  notary  for 
making  a  xalse  certificate  of  acknowledgment  is  the  amount  which  would 


Acknowledgment  and  Proof  of  Instrument.  7 

be  the  value  of  the  mortgage  if  genuine:  Heidt  v.  Minor,  113  CaL  385, 
45  Pac.  700. 

Excuse  for  Negligence. — In  a  recent  California  case  it  is  said:  "The 
plaintiff  had  the  liglit  to  rely  upon  the  certificate  of  the  notarj',  and  to 
presume,  without  question,  that  such  officer  had  done  his  duty  and  the 
notary  cannot  excuse  his  negligence  under  such  circumstances  by  the 
claim  that  the  party  who  has  been  injured  has  trusted  to  his  faithful 
performance  of  duty."  That  was  said  by  the  court  in  answer  to  the 
claim  that  because  the  plaintiff  was  guilty  of  some  negligence  in  trust- 
ing everything  to  the  notary,  the  notary  was  excused  altogether  for  his 
own  negligence.  The  court  then  continued:  "The  notary  and  his  sure- 
tics  ought  to  be  held  for  all  damages  unless  they  have  taken  the  pro- 
cautions  expressly  required  by  the  statute";  and  refers  to  section  1185, 
Civil  Code,  and  says:  "It  is  not  enough  that  the  person  was  introduced 
to  the  notary  by  a  responsible  person To  take  an  acknowledg- 
ment upon  such  introduction  without  the  [required  by  statute]  oath, 
is  negligence  sufficient  to  render  the  notary  liable  in  case  the  certificate 

turns  out  to  be  untrue The  witness  by  whose  oath  the  instrument 

is  proven,  ....  when  the  person  executing  the  instrument  was  not  per- 
sonally known  to  the  officer,  must  himself  be  known  to  the  notary. 
This  is  implied  by  the  requirement  that  the  officer  shall  certify  tliat 
s~uch  person  t.s  a  credible  icitness.  When  these  necessary  facts  do  not 
exist,  the  notarv  is  expressly  prohibited  from  taking  the  acknowledg- 
ment at  all":  Joost  v.  Craig,  131  Cal.  504,  82  Am.  St.  Rep.  374,  63 
Fac.  840. 

When  not  Liable. — In  deciding  Joost  v.  Craig,  the  court  said:  "A 
notary  may  take  all  due  precautions  and  fully  comply  with  the  statute 
and  still  be  deceived.  In  such  case  he  would  not  be  held  liable,  but  if 
he  has  not  fully  complied  with  the  statute  the  rule  announced"  in  State 
v.  Meyer,  2  Mo.  App.  413,  which  is  now  the  rule  in  Joost  v.  Craig,  "is 
not  a  whit   too   stringent." 

What  may  Happen  When  the  Believed  to  be  "Credible"  Witness  is 
Proved  to  be  not  "Credible." — In  spite  of  all  the  courts  have  said  or 
are  reasonably  liable  to  say,  officers  who  may  take  acknowledgments 
are  liable  for  their  mistakes  when  they  believe  that  an  incredible 
witness  is  credible.  If  it  should  happen  that  a  witness  who  was  be- 
lieved by  the  officer  to  be  "credible"  to  his  neighbors,  should  hap- 
pen not  to  be  so,  the  officer  would  be  in  grave  danger.  A  credible 
witness  is  one  who  has  a  general  reputation  for  truth,  honesty  and  in- 
tegrity: C.  C.  P.,  sec.  2051.  If  the  witness  produced  before  the  officer 
negatives  either  one  of  those  conditions  and  if  the  officer  is  not  aware 
of  the  fact  that  the  credible  witness  is  not  credible  where  he  is  best 
known,  and  if  the  fact  is  proved  that  he  is  such  in  an  action  against 
the  officer  to  recover  damages  on  account  of  his  false  certificate,  the  situ- 
ation, as  to  him,  would  be  grave,  and  the  witness  himself  might  be 
thrilled  with  surprises.  It  seems  to  follow  that  the  ■s\atness  runs  tl:4 
same  risk  as  the  notary,  unless  they  are  both  sure  of  their  ground,  and 
no  witness  absolutely  'knows  what  his  reputation  is  until  he  testifies 
against  large  money  interests  or  family  ties,  when  he  may  find  all  his 
enemies  marshalled  against  him.  A  notary  runs  but  little,  if  any,  risk  if 
he  refuses  employment  and  passes  his  customer  and  his  fee  on  to  a 
notary  w!  o  knows  the  customer  well  enough  to  take  or  decline  the  risk. 

Proof  of  Execution  of  Instruments  Generally. — It  is  clearly  the  inten- 
tion of  the  Civil  Code  that  the  execution  of  ^vritten  instruments  may 
be  established  upon  the  happening  of  five  different  contingencies  by 
proving  the' handwriting  of  the  maker  and  of  a  subscribing  witness,  if 
there  be  one.  Section  1948  of  the  Code  of  Civil  Procedure  permits  all 
private  wTitings,  except  last  wills  and  testaments,  to  be  proved  and 
certified  in  the  manmr  provided  for  the  acknowledgment  and  proof  of 
fonveyances    of     real    property;     and   when     so   acknowledged     or   proved 


8  New  Book  of  Forms. 

they  are  prima  facie  evidence  of  the  execution  of  the  writing  in  the 
same  manner  as  if  it  were  a  conveyance  of  real  estate.  Section  1162 
of  the  Civil  Code  provides  that  an  instrument  proved  and  certified  pur- 
suant to  sections  119S  and  1199  may  be  recorded  in  the  proper  office 
if  the  original  is  at  the  same  time  deposited  therein  to  remain  for 
public  inspection.  Under  section  1198  of  the  Civil  Code,  subdivision  1, 
when  the  parties  and  all  the  subscribing  witnesses  to  an  instrument  in 
writing  are  dead,  it  may  be  proved,  and  when  proved,  if  so  entitled, 
may  be  recorded.  It  may  be  proved  before  any  of  the  officers  and  their 
deputies  who  have  authority  to  take  acknowledgments  or  proofs,  in  or 
out  of  the  state.  Of  those  in  the  state,  all  are  ministerial  officers  except 
the  judges  of  courts  of  record  and  justices  of  the  peace.  When  judicial 
officers  perform  duties,  which  they  are  obligated  to  do,  they  of  course 
act  judicially,  and  when  they  do  things  by  authority  of  their  office  which 
are  not  judicial,  they  are  said  to  act  ministerially,  and  as  a  rule,  under 
constitutions  similar  to  that  of  California,  they  may  or  may  not  perform 
such  so-called  duties;  for  example,  they  need  not  take  acknowledgments 
of  deeds.  Section  1198  contemplates  that  the  proofs  taken  will  "estab- 
lish" the  instrument.  When  a  thing  is  proved  it  is  said  to  be  "estab- 
lished." 

The  effect  of  an  acknowledgment  of  an  instrument  is  to  give  it 
operation  until  the  instrument  is  set  aside  by  judicial  process;  but 
when  an  instrument  is  "established"  by  proof  of  its  execution,  its 
validity  is  deemed  to  be  no  longer  questionable  by  the  parties  to  it; 
but  when  section  1198  is  read  with  sections  1202-1204,  a  bewildering 
distinction  appears  between  an  "established"  instrument  and  a  judg- 
ment that  an  instrument  was  executed.  There  it  is  provided  that  an 
action  may  be  prosecuted  in  a  court  of  record  to  obtain  a  judgment 
"proving"  such  instrument,  and  when  judgment  is  obtained,  a  certified 
copy  may  be  attached  to  the  instrument,  and  when  it  is  recorded,  it  has 
the  same  effect  as  if  it  were  "acknowledged."  Necessarily  in  all  pro- 
ceedings in  courts  of  record  the  regular  course  of  judicial  proceedings 
would  be  followed,  and  the  same  effect  ought  to  be  given  to  a  judgment 
proving  that  a  certain  instrument  was  executed  as  is  given  to  all  other 
judgments  when  the  parties  bound  by  it  have  had  their  day  in  court, 
which  would  seem  to  entitle  such  judgments  to  more  consideration  than 
an  acknowledgment  taken  by  a  deputy  county  clerk  or  a  justice  of  the 
peace. 

The  framers  of  the  law  saw  that  injustice  might  be  done,  and  provided 
in  section  1162,  Civil  Code,  that  in  all  the  cases  mentioned  in  section 
1198  the  proved  instrument  should  not  be  recorded  unless  the  original 
was  at  the  same  time  deposited  in  the  recorder's  office,  there  to  remain 
for  public  inspection.  That  would  be  an  excellent  precaution  as  long  as 
the  instrument  did  remain  in  the  recorder's  office.  In  our  time  the 
provision  for  public  inspection  is  practically  a  guaranty  of  its  loss  when- 
ever it  is  a  menace  to  a  great  corporation's  interests.  Courts  will,  or 
if  they  will  not,  ought  to,  take  judicial  notice  that  records  do  not  for- 
ever remain  records,  and  that  things  deposited  for  safekeeping,  even 
when  a  strong  box  is  provided  for  their  keeping,  are  not  long  kept  when 
their  keepers  are  subject  to  frequent  change.  When  the  original  is  lost 
a  certified  copy  becomes  practically  the  original,  and  then  an  honest  in- 
strument may  be  discredited  and  a  dishonest  one  credited. 

Legal  Questions  Involved. — The  right  to  acquire,  possess  and  protect 
property  is  not  given  us  by  virtue  of  article  or  section  1  of  the  constitu- 
tion of  the  state  of  California;  it  is  a  riglit  every  citizen  of  the  United 
States  of  America  acquires  the  instant  he  becomes  such.  That  right 
cannot  be  impaired  by  the  legislature:  Billings  v.  Hall.  7  Cal.  1.  The 
right  to  acquire  is  the  right  to  use  the  proper  means  to  attain  that  end: 
Ex  parte  Newman,  9  Cal.  502. 

The  Eight  to  Acquire  Property. — To  acquire  property  it  is  necessary 
*o  have  the  right  to  use  it.     The  right  to  use  embraces  the  right  to  use 


Acknowledgment  and  Prooe  oe  Instrument.  g 

it  without  obstruction.  Land  may  be  lawfully  used  as  security  for  the 
repayment  of  borrowed  money.  A  right  to  make  use  of  land  by  selliu^ 
it  or  by  exchange  is  of  great  value. 

It  is  sometimes  better  than  "cash  money"  in  hand.  An  annuity  ia 
frequently  of  more  value  to  the  owner  of  land  than  the  land.  The  rents 
being  known,  the  immature  and  others  may  be  provided  for. 

If,  under  the  provisions  of  law,  land  has  been  so  bound  or  burdened, 
even  for  any  appreciable  period  of  time,  that  it  will  put  the  owner  or 
possessor  of  it  to  any  physical  exertion,  or  to  the  expenditure  of 
time  or  money  to  remove  the  encumbrance  or  cloud  of  title  without 
having  had  his  day  in  court,  he  has  been  deprived  of  the  right  to 
acquire  property  by  the  use  of  other  property.  All  this  may  be  done 
under  the  provision  of  section  1198  of  the   Civil   Code. 

Due  process  of  law  requires  a  trial  goverucd  by  the  established  rules 
of  evidence,  and  a  procedure  suitable  and  proper  to  the  nature  of  the 
case  and  sanctioned  by  the  established  usage  and  customs  of  the  courts: 
San  Jose  Eanch  Co.  v.  San  Jose  etc.  Co.,  126  Cal.  322,  58  Pac.  824. 

Legislative,  Executive  and  Judicial  Departments  of  the  Government. — 
No  person  charged  with  the  exercise  of  powers  properly  belonging  to 
one  department  of  the  government  shall  exercise  any  functions  apper- 
taining to  either  of  the  others:   Const.,  art.  3. 

Under  this  head  a  notary  public  has  been  selected  as  a  sample  min- 
isterial officer.  He  operates  within  the  lines  of  the  executive  depart- 
ment. It  has  been  said  in  several  states  that  when  he  takes  acknowl- 
edgments of  grants  of  land  that  he  acts  qtuisi  judicially. 

Quasi  Officers.— In  Joost  v.  Craig,  131  Cal.  540,  82  Am.  St.  Eep.  374, 
63  Pac.  840,  it  is  said  he  is  not  even  a  quasi  of  any  description,  but  is 
altogether  statutory.  Every  lawyer  knows  that  there  is  a  very  fine 
mental  line  drawn  between  ministerial  and  judicial  duties;  and  the  word 
"quasi"  is  used  to  express  the  thought  that  a  ministerial  officer  is 
partly  on  the  judicial  side  of  the  line  and  partly  on  the  other  side. 
In  short,  he  is  on  neutral  ground,  but  he  must  not  encroach  further, 
and  when  judicial  oiricors  are  on  the  executive  or  ministerial  side,  they 
go  there  not  because  their  duties  compel  it,  but  to  oblige;  therefore 
quasi  ministerial  officers  are  seldom,  if  ever,  encountered  in  law  books; 
probably  because  it  might  be  contemptuous  in  a  writer  to  refer  to  such 
a  remote  possibility. 

Judicial  Functions. — It  would  seem  that  when  a  notary  public  takes 
proof  of  handwriting  under  section  1198  of  the  Civil  Code,  if  he 
does  his  work  so  that  the  execution  of  tlie  instrument  will  be  estab- 
lished he  will  be,  to  a  great  extent,  exercising  judicial  functions.  To 
establish  or  prove  the  execution  of  written  instruments,  interpreters 
may  be  sworn,  cameras  employed,  and  all  the  machinery  of  the  law  of 
evidence  as  written  in  and  out  of  the  Code  of  Civil  Procedure  put  in 
operation,  which  is  as  much  as  the  courts  of  record  have  authority  to  do. 
It  seems  that  the  legislature  has  expressly,  in  sections  1203,  1204,  above 
referred  to,  attempted  to  confer  concurrent  power  on  notaries  public 
that  courts  of  record  have  always  enjoyed  and  now  enjoy  to  the  same 
extent  as  if  such  jurisdiction  had  not  been  conferred  by  statute  on 
such  notaries  and  others  who  may  take  such  proofs. 

The  legislature  has  no  power  to  confer  other  than  judicial  power  upon 
the  courts:  Burgoine  v.  Supervisors,  5  Cal.  9;  Hardenburg  v.  Kidd,  10 
Cal.  402 ;  and  therefore,  vice  versa,  it  cannot  confer  judicial  powers 
on  takers  of  acknowledgments.  A  judge  may  not  even  fix  the  salary  of 
his  own  reporter:  Smith  v.  Strother,  6S  Cal.  194,  S  Pac.  852;  but  after 
the  services  are  rendered  he  may  judicially  determine  their  value: 
Stevens  v.  Truman,  127  Cal.  155,  59  Pac.  397.  Strictly,  he  has  no  such 
authority,  except  after  process  served,  and  the  person  who  must  pay 
the  bill  has  had  his  day  in  court. 


10  New  Book  of  Forms. 

Po\rers  of  Officers  Who  may  Take  Acknowledgments  aad  Froo^?. — 
Thev  may  issue  Avarrants  for  the  arrest  of  ■witnesses  who  refuse  to  re- 
spond to  their  subpoenas,  and  the  sheriff  of  the  county  is  commanded  to 
obey  the  orders  and  commitments  of  such  officers  in  the  same  manner  as 
process  is  issued  by  the  superior  court:  C.  C.  P.,  sec.  1994. 

It  has  been  held  that  a  superior  court  has  no  authority  to  pvmish  a 
witness  for  refusing  to  obey  a  subpoena  issued  by  a  notary  public  com- 
manding him  to  appear  and  give  his  deposition  in  a  case  regularly  be- 
fore the  notary  for  such  purpose:  Lezinsky  v.  Superor  Court,  72  Cal. 
510,  1-i  Pac.  104.  The  California  statute  (county  government  bill)  gives 
courts  of  record  authority  to  punish  disobedience  of  a  subpoena  issued 
by  a  county  board  of  supervisors  commanding  a  person  to  appear  and 
testify  before  it  or  its  committee.  A  board  of  supervisors  not  being  a 
judicial  tribunal  within  the  meaning  of  the  constitution,  it  is  difficult  to 
uphold  such  legislation;  but  it  is  easy  to  cause  such  disobedience  to  be 
punished  as  a  misdemeanor,  there  being  a  wide  difference  between  de- 
fining contempts  and  punishing  them. 

Acknowledgment  Defectively  Certified. — When  an  acknowledgment  or 
proof  of  an  instrument  is  properly  made,  but  defectively  certified,  it 
may  be  corrected  by  action  in  a  superior  court:  C.  C,  sec.  1202.  If 
the  officer  making  the  certificate  acted  in  a  judicial  capacity,  he  would 
have  authority  to  correct  his  own  mistakes:  See  Wedel  v.  Herman,  59  Cal. 
507.  He  derives  his  power  from  the  statute.  Each  acknowledgment  is 
a  special  proceeding.  When  he  takes  it  and  delivers  it  he  is  discharged 
from  all  further  authority,  and  cannot  alter  in  the  most  minute  par- 
ticular the  sense  of  his  certificate:  Bours  v.  Zaehariah,  11  Cal.  281,  70 
Am.  Dec.  779. 

As  to  actions  to  correct  such  certificates,  see  Brown  v.  Eouse,  93  Cal. 
237,  28  Pac.  1044;  Hutchenson  v.  Ainsworth,  63  Cal.  286;  Poledori  v. 
Newman,  116  Cal.  .?75,  48  Pac.  325. 

A  deed  duly  executed,  but  not  properly  acknowledged  or  recorded, 
passes  the  grantor's  interest  except  as  to  subsequent  purchasers  in  good 
faith  and  for  a  valuable  consideration:  Ricks  v.  Reed,  19  Cal.  551;  Hast- 
ings V.  Vaughn,  5  Cal.  315.  See,  also.  Grant  v.  Oliver,  19  Cal.  158.  In 
such  cases  it  would  seem  (when  the  rights  of  subsequent  purchasers  in 
good  faith,  etc.,  are  not  involved)  that  the  officer  ought  to  have  au- 
thority to  correct  his  mistake. 

Responsibility  of  Judicial  and  Ministerial  Oflicers  in  Taking  Proof  of 
Acknowledsment. — As  the  law  now  reads  in  the  California  codes,  as 
construed  by  its  supreme  court,  a  notary  public  acts  ministerially  and 
not  judicially.  The  court  in  Joost  v.  Craig,  131  Cal.  504,  82  Am.  St. 
Rep.  374,  63  Pac.  840,  appears  to  have  reached  that  conclusion,  because 
it  relies  upon  section  801  of  the  Political  Code,  which  says:  "For  the 
official  misconduct  or  neglect  of  a  notary  public,  he  and  his  sureties  on 
his  official  bond  are  liable  to  the  parties  injured  thereby  for  all  dam- 
ages sustained."  "That  statute,"  the  court  says  in  that  section,  "sets 
at  rest  one  of  the  contentions  of  respondent  that  in  taking  an  acknowl- 
edgment a  notary  acts  judicially,  and  is,  therefore,  not  liable  in  dam- 
ages for  mere  negligence."  The  attorney  for  the  respondent,  in  Joost 
v.  Craig,  was  not  entirely  justified  in  that  contention  by  his  citation  of 
the  case  of  Wedel  v.  Herman,  59  Cal.  507,  513.  In  Wedel  v.  Herman, 
the  court  said,  but  did  not  decide,  because  it  was  not  material  to  the 
decision,  that:  "In  taking  an  acknowledgment,  the  officer  |a  notary  in 
that  case]  acts  'judicially';  and  for  that  reason  if  he  blunders  in  cer- 
tifying to  an  acknowledgment,  or  makes  a  defective  or  false  certificate, 
he  cannot  alter  or  2 mend  it." 

In  Bank  of  Woodland  v.  Oberhaus,  125  Cal.  320,  57  Pac.  1070,  Judge 
Van  Dyke,  speaking  for  the  court,  said:  "In  this  state  a  notary  does 
not   exercise   judicial   functions.      The   constitution,   article   6,  prescribes 


Acknowledgment  and  Proof  oe  Instrument.  ii 

where  the  judicial  power  is  lodjTed,  and  what  courts  and  officers  exercise 
judicial  power,  and  notaries  public  are  not  includrd  in  it." 

In  People  v.  Bush,  40  Cal.  34-1,  the  court  in  substance  says:  "A  judi- 
cial officer  may  lawfully  perform  ministerial  duties.  A  judgt-  may  take 
acknowledgments,  and  solemnize  a  marriage;  such  acts  are  ministerial." 

In  Pickett  v.  Wallace,  55  Cal.  557,  the  only  point  was  the  sufficiency 
of  a  complaint  in  an  action  to  recover  damages  against  the  judges  of  the 
California  supreme  court  "for  willfully  and  maliciously  adjudging 
the  plaintiff  to  be  guilty  of  contempt,"  and  ordering  him  to  be  impris- 
oned. The  court  said:  "We  are  not  aware  of  any  principle  ujjon  which 
this  action  can  be  maintained.  The  court  had  jurisdiction  of  the  subject 
matter  of  plaintiff's  contempt." 

In  Bradley  v.  Fisher,  13  Wall.  (U.  S.)  335,  20  L.  ed.  G46,  it  was  held 
that  judges  of  courts  of  record  of  superior  or  general  jurisdiction  are 
not  liable  in  civil  actions  for  their  judicial  acts,  even  when  their  acts 
are  in  excess  of  their  .jurisdiction,  and  are  alleged  to  have  been  done 
corruptly  and  maliciously.  The  same  point  was  also  decided  in  Turpin 
V.  Booth,  56  Cal.  65,  38  Am.  Rep.  48. 

It  a{)pears,  therefore,  that  in  California  and  in  other  places  where 
the  laws  are  the  same  as  ours  that  all  the  officers  -mentioned  in  sections 
1180,  1181,  1182,  1183,  1184,  California  Civil  Code,  may  take  and  certify 
the  proof  of  acknowledgment,  and  are  liable  in  damages  because  of 
their  mistakes;  but  in  states  where  it  is  held  by  the  courts  or  provided 
by  law  that  taking  the  proof  or  acknowledgment  of  an  instrument  is  a 
judicial,  or  perhaps  quasi  judicial  act,  it  seems  to  follow  that  such  offi- 
cers are  not  liable  in  damages.  The  following  cases  hold  that  the 
taking  of  an  acknowledgment  is  a  quasi  judicial  act:  People  v.  Bartels, 
138  111.  322,  27  N.  E.  1091;  Wasson  v.  Connor,  54  Miss.  351;  Long  v. 
Crews,  113  N.  C.  256,  18  S.  E,.  49i);  Bcaman  v.  Whitney,  20  Me.  413; 
Groesbeck  v.  Seeley,  13  Mich.  329;  Davis  v.  Beazlev,  75  Va.  491;  Bowden 
v.  Parrish,  86  Va.  67,  19  Am.  St.  Rep.  873,  9  S.  E.'616;  Brown  v.  Moore, 
38  Tex.  646,  and  many  others. 

In  California  if  a  justice  of  the  supreme  court,  or  a  judge  of  a  superior 
court,  should  execute  a  fatally  defective  certificate,  he  would  not  be 
liable  if  he  acted  judicially,  and  would  have  authority  to  correct  his 
mistake. 

Acknowledgment  by  Married  Women,  Prior  to  July  1,  1891. — A  certifi- 
cate of  acknowledgment  is  merely  evidence  to  show  that  the  contract 
is  her  act:  Smith  v.  Green,  31  Cal.  31.  All  her  conveyances  are  invalid 
unless  executed  in  the  manner  required  bv  law:  Landers  v.  Bolton,  26 
Cal.  393,  cited  in  Wambole  v.  Toole,  2  Dak.  23,  2  N.  W.  239.  As  the 
law  stood  prior  to  the  codes,  execution,  acknowledgment  and  eertifie-i- 
tion  were  essentials  to  the  conveyance  of  her  estate.  Under  the  codes 
the  certificate  is  not  a  part  of  the  conveyance,  but  is  regarded  as  record 
proof  of  her  acknowledgment  of  it:  Wedel  v.  Herman,  59  Cal.  507.  The 
law  requiring  conveyances  by  married  women  to  be  acknowledged  in  a 
particular  manner  applies  to  all  such  without  any  exception  as  long  as 
the  marital  relation  exists,  and  relates  also  to  their  separate  propertv: 
Danglarde  v.  Elias,  80  Cal.  65,  22  Pac.  69;  Banbury  v.  Arnold,  91  Cal. 
606,  27  Pac.  934.  There  must  be  private  examination  of  the  wife,  sep- 
arate and  apart  from  her  husband:  Kendall  v.  Miller,  9  Cal.  591;  Tolman 
v.  Smith,  74  Cal.  349,  16  Pac.  189.  Without  such  examination  her  deed 
conveys  no  title  whatever:  IMcLeran  v.  Benton,  43  Cal.  467,  and  oth'^r 
cases  down  to  Bollinger  v.  Manning,  79  Cal.  7,  21  Pac.  375,  cited  in  2 
Dak.  23.  Certificate  must  state  that  the  contents  of  the  deed  were 
explained  to  her:  Pease  v.  Barbiers,  10  Cal.  436. 

If  the  certificate  states  that  she  was  made  acquainted  with  the  con- 
tents of  the  instrument  without  stating  who  made  her  acquainted  with 
the  contents,  it  is  valid:  Jansen  v.  McCahill,  22  Cal.  563,  83  Am.  Dec. 
84.     The  words  "made  her  acquainted  by  me"  are  surplusage:   Societe 


12  New  Book  of  Forms. 

Francaise  v.  Beard,  54  Cal.  480.  If  the  woman  understood  English 
there  was  no  necessity  for  an  interpreter  to  make  her  acquainted  with 
the  contents  of  the  instrument:  Pfeiffer  v.  Rein,  13  Cal.  643.  A  notary 
need  not  explain  the  contents  of  a  document  referred  to  in  a  convey- 
ance: Bull  V.  Coe,  77  Cal.  54,  11  Am.  St.  Rep.  235,  18  Pac.  808.  If 
a  married  woman  obtains  a  decree  of  divorce  which  is  void,  but  she 
assumes  her  maiden  name,  lives  apart  from  her  husband,  and  continu- 
ously acts  and  represents  herself  as  a  feme  sole,  a  conveyance  of  her 
separate  estate  made  and  acknowledged  by  her  as  an  unmarried  woman 
is  valid:  Reis  v.  Lawrence,  63  Cal.  129,  49  Am.  Rep.  83  To  the  same 
effect.  Hand  v.  Hand,  68  Cal.  135,  58  Am.  Rep.  5,  8  Pac.  705.  Her  deed, 
if  not  properly  acknowledged,  is  void:  Bollinger  v.  Manning,  79  Cal.  7, 
21  Pac.  375.  And  the  same  as  to  her  separate  property:  Ewald  v.  Cor- 
bett,  32  Cal.  493,  cited  in  2  Dak.  23,  2  N.  W.  239.  When  her  acknowl- 
edgment has  been  properly  taken,  though  defectively  certified,  her  con- 
veyance has  the  same  legal  effect  as  the  deed  of  a  single  woman:  Wedel 
V.  Herman,  59  Cal.  507. 

Acknowledgment  by  a  married  woman  is  an  essential  part  of  the  exe- 
cution of  a  conveyance  from  her,  without  which  it  has  no  validity: 
Mathews  v.  Davis,  102  Cal.  202,  36  Pac.  358.  As  late  as  March,  1904, 
notwithstanding  the  attempted  legislative  abolition  of  all  distinctions 
between  conveyances  executed  by  men  and  women,  it  has  been  decided 
that  a  deed  signed  and  delivered,  except  where  a  married  woman  is  a 
grantor,  is  good,  and  operates  to  convey  the  title:  Gordon  v.  City  of  San 
Diego,  108  Cal.  264,  41  Pac.  301;  Loupe  v.  Smith,  123  CaL  491,  56  Pac. 
254. 

Conclusiveness  of  Certificates  of  Acknowledgments. — As  to  married 
women,  the  American  states  usually  make  the  acknowledgment  part  of 
the  execution  of  a  deed,  etc.,  and  it  has  no  effect  unless  it  has  been 
acknowledged  before  a  proper  officer,  and  except  where  provision  is 
made  for  the  perfection  of  imperfect  certiiicates,  the  absence  of  a  suffi- 
cient certificate  is  fatal  to  a  married  woman's  deed.  Though  the  cer- 
tificate is  in  every  respect  perfect,  she  may  insist  that  it  is  false;  and 
then  the  question  arises,  Is  it  conclusive  against  her,  or  is  it  only  prima 
facie  evidence  of  the  contents  of  the  certificate?  At  this  point  there 
is  a  great  difference  of  opinion.  If  the  taking  of  an  acknowledgment  is 
a  judicial  act,  then  it  would  seem  that  the  certificate  is  conclusive.  If 
it  is  not,  then,  in  the  absence  of  a  statute  that  it  shall  be  conclusive, 
it  ought  not  to  be  conclusive. 

Is  the  Taking  of  an  Acknowledgment  a  Judicial  Act  Under  Statutes'' 
The  California  codes  and  all  the  codes  and  other  laws  of  states  and  ter- 
ritories west  of  the  Rocky  Mountains  authorize  judicial  as  well  as  min- 
isterial officers  to  take  and  certify  acknowledgments  and  proof  of  in- 
struments; and  at  least  ninety  per  cent  of  acknowledgments  are  taken 
by  ministerial  officers  such  as  notaries,  court  clerks  and  their  deputies, 
recorders  of  deeds,  etc.,  and  their  deputies. 

It  has  been  said  that  it  is  difficult  to  understand  why  the  duties  per 
formed  by  ministerial  officers  in  taking  acknowledgment  of  writings  are 
any  more  judicial  in  their  character  than  are  their  duties  when  they 
present  a  negotiable  instrument  for  payment;  and  if  not  paid,  make  a 
certificate  showing  that  the  instrument  was  dishonored.  Nevertheless 
the  courts  of  Illinois,  Pennsylvania,  Virginia,  and  West  Virginia  and 
others,  have  said  that  the  duties  performed  in  the  acknowledgment  of  a 
deed  by  whomsoever  it  may  have  been  performed  are  judicial  in  their 
nature  and  to  some  extent  at  least  in  their  effect:  See  note  to  American 
Freehold  Co.  v.  Thornton,  54  Am.  Rep.  150,  151.  In  .Joost  v.  Craig,  131 
Cal.  504,  82  Am.  St.  Rep.  374,  63  Pac.  840,  it  is  said  that  because  a 
eection  of  the  Political  Code  makes  a  notary  and  his  bond  liable  for 
official  mistakes,  etc.,  and,  for  that  reason,  in  California,  he  does  not  act 
judicially  in  taking  acknowledgments.     In  Bank  of  Woodland  v.  Ober- 


Acknowledgment  and  Proof  op  Instrument.  13 

hau3,  125  Cal.  320,  57  Pac.  1070,  it  was  said  without  qualification  that  a 
notary  in  taking  an  acknowledgment  acts  ministerially  and  not  ju- 
dicially. 

In  Hitz  V.  .Tenks,  123  U.  S.  297,  18  Sup.  Ct.  Rop.  143,  31  L.  ed.  156,  it 
is  said  that  the  duty  of  examining  the  wife  apart  and  from  her  husband, 
of  ex[il:uiiing  the  instrument  to  her.  and  of  ascertainin;:;  if  she  executed 
it  with  her  own  free  will  is  a  judicial  or  quasi  judicial  act.  It  con- 
cludes by  saying:  "The  reasonable,  if  not  the  necessary,  conclusion  is, 
that,  except  in  ease  of  fraud,  the  certificate,  made  and  recorded  as  the 
statute  requires,  is  the  sole  and  conclusive  evidence  of  the  separate  ex- 
amination and  acknowledgment  of  the  wife";  that  is  to  say,  the  act 
of  taking  it  is  judicial. 

Effect  of  the  Law  as  Stated  in  Hitz  v,  Jenks. — Whenever  the  decision 
in  Hitz  v.  Jenks,  above  cited,  is  followed,  a  certificate  of  acknowledg- 
ment signed  and  attested  in  due  form  of  law  will  have  the  conclusive- 
ness of  a  judgment.  The  judgment  (certificate)  of  the  ministerial  officer 
will  be  final.  It  cannot  be  attacked  except  upon  the  same  grounds 
available  to  avoid  a  judgment  of  a  court  of  general  jurisdiction.  There 
being  no  appeal  from  the  judgment  granting  the  certificate  of  acknowl- 
edgment, it  may  be  shown  that  the  oflicer  who  took  it  had  no  jurisdiction 
over  the  parties,  or  the  subject  matter  of  the  instrument  acknowledged, 
or  a  bill  in  equity  would  lie  to  set  it  aside  upon  the  same  grounds  that 
courts  of  equity  will  grant  relief  when  the  judgment  of  a  court  is  at- 
tacked. Such  relief  would  not  be  available  against  an  innocent  encum- 
brancer. The  courts  that  hold  that  a  judgment  cannot  be  attacked 
except  upon  statutory  grounds  will  hold  the  same  as  to  "certificates  of 
acknowledgment  judgments." 

Want  of  Jurisdiction  to  Take  an  Acknowledgment  or  Proof  of  Execu- 
tion.— Some  cases  hold  that  a  certificate  of  acknowledgment  is  not  sub- 
ject to  disapproval  except  for  fraud,  accident  or  mistake  of  which  the 
person  reiving  upon  the  acknowledgment  had  no  notice:  Graham  v. 
Anderson,  42  111.  514,  92  Am.  Dee.  89. 

In  Kerr  v.  Russell,  69  111.  666,  18  Am.  Rep.  634,  it  was  said:  "Xo  man 
would  be  content  with  his  title,  in  all  respects  perfect  upon  its  face,  if 
it  could  be  inquired  intq.  Who  would  take  a  deed  to  which  a  married 
woman  is  a  party  with  the  probable  direful  results  of  having  it  set  aside 
staring  him  in  the  face?  Everything  relating  to  titles  would  be  thrown 
into  confusion,  and  irretrievable  mischief  would  be  the  certain  conse- 
quence. " 

It  does  not  seem  to  be  probable  that  Kerr  v.  Russell  will  be  followed 
except  where  the  statutes  make  certificates  of  acknowledgment  final 
except  upon  the  allegation  of  fraud.  The  state  of  Kentucky  has  such 
a  statute,  and  there  it  has  been  held  that  an  acknowledgment  could  not 
be  impeached  on  the  gi-ound  that  it  was  taken  by  the  officer  out  of  the 
county  in  which  he  was  authorized  to  act,  and  in  which  the  certificate 
stated  the  acknowledgment  was  taken:  Davis  v.  Jenkins.  93  Ky.  353.  40 
Am.  St.  Rep.  197.  20  S.  W.  283.  Even  in  those  states  where  the  taking 
of  certificate  is  deemed  a  judicial  act,  and  which  are  not  controlled  by 
statutes  like  the  one  of  Kentucky,  it  may  be  impeached  by  proof  that 
it  was  entirely  false,  and  that  there  was  no  appearance  before  the  officer 
and  no  authorization  to  him  to  certify  the  acknowledgment:  Grider  v, 
American  Co..  99  .\la.  281.  41  Am.  St.  Rep.  58.  12  South.  775;  Donohae 
V.  Mills,  41  Ark.  421;  Smith  v.  Ward.  2  Root,  378.  1  Am.  Dec.  80;  Phillips 
T.  Bishops.  31  Neb.  853,  48  N.  W.  1106;  Williamson  v.  Carksadden.  36 
Ohio  St.  664;  Michener  v.  Cavender,  38  Pa.  St.  334.  80  Am.  Dec.  486; 
Peckens  v.  Kinsley.  29  W.  Ya.  1,  6  Am.  St.  Rep.  622.  1  S.  E.  932. 

Where  There  was  an  Appearance,  but  the  Certificate  is  False. — In 
states  where  the  officer's  acts  are  deemed  to  be  judicial,  no  error  on  his 
part  can  render  his  certificate  void  if  his  certificate  states  sufficient 
** facts"  which  were  not  true.     For  example,  where  he  did  not  inform  a 


14  New  Book  op  Forms. 

vrife  of  the  contents  of  a  deed,  did  not  examine  her  apart  from  her 
husband,  and  in  fact  the  wife  was  coerced  by  her  husband  to  execute 
the  deed,  the  certificate  is  impregnable.  Such  deeds  may  be  avoided 
on  account  of  fraud  or  duress,  but  the  instrument  will  not  be  permitted 
to  operate  against  innocent  purchasers  or  encumbrancers  in  good  faith 
and  for  a  valuable  consideration:  Gidden  v.  Boiling,  99  Ala.  319,  13 
South.  511;  Grider  v.  American  Co.,  99  xVla.  281,  42  Am.  St.  Rep.  58,  12 
South.  775;  Holt  v.  Moore,  37  Ark.  145;  Meyer  v.  Gossett,  38  Ark.  377; 
Donohue  v.  Mills,  41  Ark.  421;  Petty  v.  Grisard,  45  Ark.  117;  Baldwin 
V.  Snowden,  11  Ohio  St.  203,  78  Am.  Dec.  303;  Heeter  v.  Glascow,  79 
Pa.  St.  79,  21  Am.  Rep.  46;  Singer  Co.  v.  Root,  84  Pa.  St.  442,  24  Am. 
Rep.  204;  Webb  v.  Burney,  70  Tex.  322,  7  S.  W.  841;  Hitz  v.  Jenks,  123 
U.  S.  297,  18  Sup.  Ct.  Rep.  143,  31  L.  ed.  156. 

All  the  courts  agree  that  where  the  certificate  states  that  the  party 
appeared  before  the  officer,  but  in  fact  he  did  not  appear  before  him 
nor  authorized  him  (in  advance)  to  certify  that  such  acknowledgment 
was  made,  that  it  is  not  material  whether  the  act  of  taking  the  ac- 
knowledgment is  or  is  not  judicial;  for  if  it  be  judicial,  the  officer  had 
no  jurisdiction  to  take  it.  The  same  rule  would  apply  to  a  judgment 
of  a  court  of  general  jurisdiction,  but  more  strictly  construed  against 
the  judicial  than  against  the  ministerial   officers  of  low  degree. 

The  following  authorities  appear  to  agree  in  the  substance  of  the  fore- 
going, and  some  hold  that  the  officer  acts  judicially  or  quasi  judicially, 
and  others  that  he  acts  only  in  a  ministerial  capacity:  Holt  v.  Moore,  37 
Ark.  145;  Moore  v.  Hopkins,  83  Cal.  270,  17  Am.  St.  Rep.  248,  23  Pae.  318 
(except  that  ease,  Moore  v.  Hopkins,  carefully  attempts  to  make  a  dis- 
tinction between  a  certificate  of  acknowledgment  attached  to  a  deed  of 
conveyance  and  one  attached  to  a  release  of  debt,  and  bases  its  distinc- 
tion upon  section  1948,  Code  of  Civil  Procedure,  which  declares  that  such 
an  instrument  is  only  prima  facie  evidence  of  its  execution,  the  same  as 
if  it  were  "a  conveyance  of  real  estate");  Vanormon  v.  McGregor,  23 
Iowa,  300;  Borland  v.  Walrath,  33  Iowa,  130;  Dodge  v.  Hollingshead,  6 
Minn.  25,  80  Am.  Dec.  433;  Edgerton  v.  Jones,  10  Minn.  247;  Pierce  v. 
Georger,  103  Mo.  540,  15  S.  W.  848;  Barrett  v.  Davis,  104  Mo.  549,  16 
S.  W.  377;  Comings  v.  Leedy,  114  Mo.  454,  21  S.  W.  80 i;  Jackson  v. 
Schoomaker,  4  Johns.  161;  Jackson  v.  Perkins,  2  Wend.  308. 

In  Texas  a  notary  was  present  when  a  witness  was  being  examined 
by  an  officer  who  was  taking  his  deposition.  He  testified  that  he  exe- 
cuted a  certain  instrument.  The  notary,  without  the  request  of  the 
witness,  attached  his  certificate  of  acknowledgment  to  it.  Held,  that 
the  witness  did  not  intend  by  his  evidence  to  authorize  such  certificate 
of  acknowledgment:  Brietling  v.  Chester,  88  Tex.  586,  32  S.  W.  527. 

Impeachment  as  to  Married  Woman. — The  decisions  of  several  states 
clearly  indicate  that  a  married  woman's  acknowledgment  may  be  im- 
peached even  against  an  innocent  purchaser  if  it  appears  that  she  did 
not  understand  the  instrument,  or  because  she  was  not  informed  of  the 
contents,  or  because  she  was  not  examined  separately  and  apart  from 
her  husband:  Dodge  v.  Hollingshead,  6  Minn.  25,  80  Am.  Dec.  433; 
Edgerton  v.  Jones,  10  Minn.  427;  Wannell  v.  Kern,  57  Mo.  478;  Steffen 
V.  Bauer,  70  Mo.  399;  Mays  v.  Pryce,  95  Mo.  603,  8  S.  W.  731;  Hays  v. 
Hays,  5  Rich.  31;   Garth  v.  Fort,  15  Lea,  683. 

The  great  ma.ss  of  authority  is  said  to  be  against  this  view.  They 
are  said  to  hold  that  such  acknowledgments  of  a  married  woman  can- 
not be  impeached  except  for  duress  or  fraud,  and  then  only  against 
persons  having  notice  thereof,  and  when  an  officer  has  authority,  his 
certificate  cannot  be  impeached  by  proving  that  he  did  not  perform  his 
duty  in  some  respect,  and  that  he  did  not  inform  the  wife  of  the  con- 
tents of  the  instrument  on  an  examination  without  the  hearing  of  her 
husband:  See  note  to  American  Freehold  Co.  v.  Thornton,  54  Am.  St. 
Bep.   155,   where   more   than   forty   authorities   are   cited   to    uphold   the 


ACKNOWLEDGMHJNT  AND   PrOOF   OF   INSTRUMENT.  1 5 

text,  and  among  them,  Banning  v.  Banning,  80  Gal.  271,  13  Am.  St.  Rep. 
156,  22  Pac.  210,  which  only  decidca  that  when  a  certificate  of  acknowl- 
edgment of  a  deed  from  a  married  woman  is  in  due  form,  and  is  not 
impeached  for  fraud,  duress  or  mistake,  it  is  conclusive  of  the  facts 
therein  stated  by  the  notary,  and  cannot  be  impeached  by  evidence  that 
the  notary  took  her  acknowledgment  by  telephone  when  he  was  three 
miles  distant  from  her. 

Burden  of  Proof. — The  burden  of  proof  to  attack  a  certificate  of 
acknowledgment  is  always  on  the  party  that  assails  it:  See  note  to 
American  Freehold   Co.   v.  Thornton,   54   Am.   Eep.   157. 

The  Assailant  Ought  to  be  Corroborated. — As  a  general  proposition, 
a  certificate  of  acknowledgment  will  not  be  disregarded  upon  the  evi- 
dence of  the  grantor  alone:  See  note  to  American  Freehold  Co.  v. 
Thornton,  54  Am.  Rep.  157. 

The  Officer  as  a  Witness. — One  question  is.  Will  the  officer  who  takes 
the  acknowledgment  be  pcrmittted  to  impeach  his  own  certificatet  Some 
eases  hold  that  it  is  against  public  policy  to  permit  him  to  do  so,  but 
others  seem  to  hold  that  it  is  'permissible:  See  note  to  American  Free- 
hold  Co.  V.  Thornton,  54  Am.  Rep.   157. 

Interest  of  Officer  Taking  an  Acknowledgment — Its  Effect  on  the 
Instrument. — An  officer  cannot  take  an  acknowledgment  of  an  instr-i- 
ment  to  which  he  is  a  party  or  in  which  he  is  directly  interested.  That 
rule  is  believed  to  be  universal.  The  instrument  remains  good  between 
the  parties  to  it  and  those  having  actual  notice  of  its  existence;  the 
effect  is  upon  its  right  to  registration  or  recording.  It  has  no  right  to 
be  registered  or  recorded  if  the  instrument  shows  on  its  face  that  it 
was  acknowledged  before  a  party  to  it:  Condensed  from  note  to  Cooper 
v.  Hamilton,  oG  Am.  St.  Rep.  799,  800. 

Officer's  Interest  not  Appearing  in  the  Instrument. — An  acknowledg- 
ment taken  by  a  magistrate  bound  by  contract  to  procure  a  wife  to 
join  with  her  husband  in  a  deed  to  a  third  person  is  disqualified  to 
take  her  acknowledgment  on  account  of  interest.  Such  a  deed  would 
not  be  admitted  in  evidence  as  notice. 

A  number  of  cases  maintain  that  if  it  does  not  appear  on  the  face  of 
the  instrument,  or  otherwise,  that  the  officer  was  disqualified  to  act  bv 
reason  of  interest,  the  instrument  is  entitled  to  record,  and  such  record 
becomes  notice  to  subsequent  purchasers,  creditors  or  encumbrancers. 
A  recorder  has  no  authority  to  dig  below  the  surface  of  an  instrument 
to  discover  defects.  The  fact  that  the  officer  taking  the  acknowledg- 
ment of  a  mortgage  negotiated  the  loan  secured  does  not  render 
the  mortgage  fraudulent  unless  it  is  shown  that  the  officer  has  an  in- 
terest in  either  the  lien  or  the  note  secured.  It  has  been  held  that  a 
notary  not  named  in  the  instrument  was  competent  to  take  acknowl- 
edgment and  certify  a  deed  of  trust,  although  he  was  interested  as  one 
of  the  beneficiaries  of  the  trust.  A  record  of  a  deed  cannot  be  de- 
stroyed by  parol  evidence  that  the  officer  before  whom  it  was  acknowl- 
edged had  an  interest  in  the  land  not  disclosed  by  the  deed  and  ac- 
knowledgment: Condensed  from  note  to  Cooper  v.  Hamilton,  56  Am.  St. 
Rep.  799,  800. 

Relationship. — As  a  rule,  an  acknowledgment  is  not  invalidated  by 
the  fact  that  the  officer  taking  it  is  related  by  blood  or  marriage  to 
the  parties  to  the  instrument,  because  the  taking  is  a  ministerial,  ami 
not  a  judicial,  act.  Consequently  a  commissioner  of  deeds  may  take 
an  acknowledgment,  though  so  related  to  the  parties  to  it  as  to  be 
disqualified  to  act  as  judge  or  juror  in  a  trial  where  they  are  parties. 
It  has  been  said  that  a  justice  of  the  peace  is  not  disqualified  by  his 
relationship  to  the  parties  from  taking  the  acknowledgment  of  a  d.eJ 
in  which  his  father  is  grantor  and  his  wife  is  the  grantee.  An  acknowl- 
edgment taken  by  a  notary  who  is  a  nephew  of  a  party  to  it  is  vali'l, 


1 6  •  New  Book  of  Forms. 

though  he  is  active  in  procuring  its  execution,  but  is  neither  a  party 
nor  beneficially  interested  in  its  execution  or  delivery.  An  acknowledg- 
ment of  a  mortgage  taken  by  the  brother  in  law  of  the  mortgagee  is 
not  illegal,  nor  is  its  record  bad.  An  acknowledgment  of  a  mortgage 
made  to  a  married  woman  is  not  invalid,  though  taken  before  the  hus- 
band of  the  mortgagee;  but  it  would  be  bad  when  the  husband  is  the 
procuring  cause  of  the  mortgage  having  been  made:  Condensed  from 
note  to  Cooper  v.  Hamilton,  56  Am.  St.  Rep.  799,  800. 

Attesting  Witness. — An  officer  who  is  an  attesting  witness  to  a  deed 
is  not  incompetent  to  take  the  acknowledgment  of  its  execution.  If 
the  certificate  was  given  by  a  commissioner  of  deeds,  who  was  also  an 
attesting  witness,  and  the  facts  do  not  appear  from  the  deed  itself, 
it  is  admissible  in  evidence  if  regularly  recorded:  Condensed  from  note 
to  Cooper  v.  Hamilton,  56  Am.  St.  Eep.  799,  800. 

Agent  cr  Attorney. — An  officer  who  identifies  himself  with  a  transac- 
tion evidenced  by  a  written  instrument,  by  placing  his  name  on  the 
face  thereof  as  the  avowed  agent  of  one  of  the  parties,  is  incompetent 
to  take  the  acknowledgment  of  it.  Otherwise,  it  is  said  the  mere 
agency  of  the  officer  does  not  disqualify  him.  Thus,  a  notary  who  acts 
as  agent  for  the  mortgagor  in  obtaining  a  loan  secured  by  the  mort- 
gage is  not  so  interested  as  to  be  disqualified  to  take  the  acknowledg- 
ment of  the  mortgage.  If  the  officer,  as  agent,  secured  the  loan  and 
was  a  partner  of  the  mortgagor,  he  was  not  disqualified  to  take  the 
acknowledgment  of  its  execution  unless  it  is  shown  that  he  was  a  party 
in  interest.  A  notary  who  is  also  a  deputy  sheriff  may  take  the  sheriff's 
acknowledgment  of  a  deed  under  foreclosure  of  a  mortgage  on  the 
premises  described  in  the  mortgage,  and  a  deputy  county  clerk  may 
take  the  acknowledgment  of  a  deed  to  the  county  clerk;  but  a  deed  of 
a  married  woman  acknowledged  before  the  husband  of  the  grantee,  who 
is  the  procuring  cause  of  its  being  made,  is  void:  Condensed  from  note 
to  Cooper  v.  Hamilton,  56  Am.  St.  Rep.  799.  800. 

Representatives  of  Corporations. — If  such  have  authority  to  execute 
deeds  in  its  behalf  they  may  take  the  acknowledgments  of  such  deeds. 
An  officer  of  a  corporation  Whose  duty  it  is  to  countersign  and  register 
its  deeds  is  not  disqualified  from  taking  the  acknowledgment  thereof  aa 
a  notary  public  when  his  signature  is  not  necessary  to  the  validity  of 
the  instrument.  A  member  of  a  purely  eleemosynary  corporation,  al- 
though he  receives  a  small  amount  of  payment  for  attending  its  meet- 
ings, and  acting  as  its  secretary,  is  not  disqualified  from  taking  the 
acknowledgment  of  a  grantor  in  a  deed  of  trust  to  secure  a  debt  due 
to  Buch  corporation.  A  notary  who  was  secretary  and  treasurer  of  a 
corporation  took  the  acknowledgment  of  a  mortgage  made  to  it;  it  not 
being  shown  that  he  was  a  stockholder,  and  as  such  was  interested 
beneficially,  the  acknowledgment  was  good:  Condensed  from  note  to 
Cooper  V. 'Hamilton,  56  Am.  St.  Eep.  799,  800. 

Attorney  at  Law. — An  attorney  at  law  may,  as  notary,  take  the  ac- 
knowledgment of  a  deed  of  either  husband  or  wife.  The  fact  that  the 
attorney  taking  the  wife's  acknowledgment  of  a  mortgage  upon  her 
separate  property  to  secure  her  husband's  debts  is  the  general  attorney 
for  the  husband,  but  has  no  interest  in  the  transaction,  does  not  dis- 
qualify him.  A  notary  who  is  the  attorney  of  one  of  the  parties  to  an 
instrument  but  is  not  interested  in  it  may  take  the  acknowledgment  to 
it.  It  has  been  held  that  a  notary,  who  is  attorney  for  a  mortgagor,  ia 
disqualified  to  take  the  mortgagee's  acknowledgment  to  the  mortgage, 
and  that  a  mortgage  recorded  on  such  an  acknowledgment  is  not  legally 
recorded  and  docs  not  constitute  constructive  notice.  If  an  attorney 
nets  for  both  parties  in  the  preparation  of  a  mortgage,  he  is  not  thereby 
disqualified  from  attesting  it,  and  his  attestation  as  a  notary  entitles 
the    instrument    to    be    recorded;    and    the    fact    that    be    is    subsequently 


Acknowledgment  and  Proof  of  Instrument.  17 

employed  to  foreclose  the  mortgage  does  not  relate  back  to  and  a£fect 
the  validity  of  his  attestation:  Condensed  from  note  to  Cooper  v. 
Hamilton,  56  Am.  St.  Eep.  799,  800. 

Certificate  or  Proof  of  Acknowledgment  of  Written  Instru- 
ments— Who  may  Take. — A  justice  or  clerk  of  the  supreme 
court  and  a  judge  of  the  superior  court,  at  any  place  in  the  state. 

NOTE.— California  C.  C,  see.  1180;  C.  C.  P.,  sec.  179;  Idaho,  C.  C, 
sec.  2419;  Montana,  C.  C,  sec.  1600;  North  Dakota,  C.  C,  sec.  3573. 

Oregon:  The  law  is  very  simple  and  sensibly  brief.  A  conveyance 
executed  within  the  state  must  be  acknowledged  before  a  judge  of 
the  supreme  court,  county  judge,  justice  of  the  peace,  or  notary  pub- 
lic within  the  state.  The  only  statutory  forms  are  expressly  directed 
to  be  used  by  justices  of  the  peace  presunijitively,  because,  being 
in  good  form  for  a  justice  of  the  lowest  court,  they  would  also  be  in 
good  form  for  a  judge  of  the  highest  and  all  intermediates:  Bee  post, 
Forms,  Oregon.  Oflicer  taking  it  must  indorse  thereon  a  certificate  of 
the  acknowledgment  thereof,  and  the  true  date  of  making  the  same: 
Codes  and  Statutes,  sec.  3542. 

If  executed  in  any  other  place  in  the  United  States,  it  may  be  exe- 
cuted according  to  the  laws — state,  territory  or  district — where  executed 
before  a  judge  of  a  court  of  record,  justice  of  the  peace,  or  notary 
public,  or  other  officer  authorized  by  the  laws  of  such  places  to  take 
acknowledgments;  or  by  a  commissioner  appointed  by  the  governor  of 
Oregon  for  such  purpose:  Id.,  sec.  5343. 

If  it  is  taken  before  any  officer  except  a  commissioner  appointed  by 
the  governor  aforesaid,  a  notary  public,  under  his  seal,  or  before  a  clerk 
of  record  under  the  seal  of  his  court,  it  must  have  attached  to  it  a  cer- 
tificate of  a  clerk  of  a  court  of  record,  of  the  county  or  district,  under 
the  seal  of  his  office,  that  the  person  who  subscribed  the  certificate  of 
acknowledgment  was  at  its  date  the  officer  he  is  therein  represented 
to  be,  and  that  he  believes  the  signature  of  such  person  to  be  genuine, 
and  that  the  conveyance  is  executed  according  to  the  laws  of  the  place 
where  executed:  Id.,  sec.  5344. 

A  conveyance  executed  in  a  foreign  country  may  be  executed  accord- 
ing to  its  laws,  and  acknowledged  before  a  notary  public,  a  minister 
plenipotentiary',  extraordinary',  resident,  charge  d'affaires,  commissioner 
or  consul  of  "the  United  States,  appointed  to  reside  therein.  The  officer 
must  certify  to  it,  and  a  notary  must  affix  his  seal:   Id.,  sec.  5345. 

A  married  woman's  acknowledgment  to  a  conveyance  of  land  in  the 
state  is  taken  the  same  as  if  she  was  unmarried:  Id.,  sec.  5346.  If  a 
married  woman  not  residing  in  Oregon  joins  her  husband  in  a  convey- 
ance of  land  there,  the  acknowledgment  may  be  taken  as  if  she  were 
sole,  and  with  the  same  effect:  Id.,  sec.  5348. 

"No  acknowledgment  of  any  conveyance  having  been  executed  shall 
be  taken  by  any  officer  unless  he  shall  know,  or  have  satisfactory  evi- 
dence that  the  person  making  such  acknowledgment  is  the  individual 
described  in  and  who  executed  such  conveyance":  Id.,  sec.  5349;  and 
that  is  the  law  and  all  the  law  of  Oregon  upon  the  subject  of  taking 
and  certifying  acknowledgments  of  conveyances  of  land.  Under  section 
5349  all  the  statutory  forms  of  acknowledgments  in  this  book  printed 
are  more  than  sufficient  in  Oregon,  except  when  taken  by  a  justice  of 
the  peace.  In  such  case,  notwithstanding  the  fact  that  section  5346 
above  referred  to  makes  no  distinction  between  her  acknowledgment  and 
her  husband's,  if  it  is  taken  by  a  justice  of  the  peace  the  following 
form  must  be  used:   See  Oregon  Forms,  post. 

In  the  State. — Within  the  city  and  county,  county,  or  dis- 
trict for  which  the  officer  was  elected  or  appointed,  before  either 
New  Forms — 2 


i8  New  Book  of  Forms. 

a  clerk  of  a  court  of  record ;  or  a  county  recorder ;  or  a  court  com- 
missioner;  or  a  notary  public;  or  a  justice  of  the  peace  within 
his  city  and  county.  A  judge  of  a  police  or  other  inferior  court 
within  his  city  and  county,  city,  or  towru 

NOTE.— California,  C.  C,  sec.  1181;  C.  C.  P.,  see.  179, 

Alaska:  Before  any  judge,  clerk  of  a  district  court,  notary  public,  or 
commissioner  within  the  district:  Codes,  pt.  5,  c.  11,  sec.  82,  p.  370. 

Arizona:  A  clerk  of  a  court  having  a  seal,  a  notary  public,  county  re- 
corder, justice  of  the  peace:  C.  C,  par.  740. 

Colorado:  Before  a  judge  of  any  court  of  record,  its  clerk,  or  deputy, 
tinder  the  court's  seal;  the  clerk  or  recorder  of  a  county,  or  his  deputy, 
under  the  seal  of  the  county,  or  a  notary  public  under  his  seal,  or  before 
a  justice  of  the  peace  in  his  county.  If  the  instrument  acknowledged 
before  a  justice  of  the  peace  is  for  the  conveyance  of  lands  beyond  his 
county,  then  the  county  clerk  and  county  recorder  shall  certify  under 
the  county  seal  to  the  official  capacity  of  the  justice,  and  that  the  sig- 
nature is  the  true  signature  of  the  justice;  a  clerk  of  the  United  States 
district  court  for  Colorado:   Mill's  Stats.,  sees.   439,  442. 

Idaho,  C.  C,  sec.  2420,  the  same  as  in  California. 

Montana,  C.  C,  sec.  1601,  the  sarhe  as  in  California,  except  a  court 
commissioner. 

Nevada:  A  judge  or  clerk  of  a  court  having  a  seal,  a  notary  public 
or  justice  of  the   peace:   Comp.  Laws,  sec.   2642. 

In  New  Mexico  "before  any  court  having  a  seal,  if  by  any  judge,  jus- 
tice of  the  peace  or  clerk,  in  the  same  manner,"  or  "by  any  justice 
of  the  peace  of  the  county  wherein  said  real  estate  is  situated":  Comp. 
Laws,  sec.  3944. 

North  Dfikota,  C.  C,  sec.  3574,  with  the  addition  of  "a  mayor  of  a 
city,  register  of  deeds,  United  States  circuit  or  district  court  commis- 
sioner, and  county  auditor." 

South  Dakota,  C.  C,  sec.  971,  with  the  same  exception.  By  a  judge 
or  clerk  of  a  court  having  a  seal,  a  notary  public,  county  clerk  or  county 
recorder:  Rev.  Stats,,  sec,  198.5, 

Washington:  Acknowledgments  of  instruments  may  be  taken  before 
a  judge  of  the  supreme  court,  or  the  clerk  or  deputy  clerk,  a  judge  of 
the  superior  court,  or  the  clerk,  or  the  deputy  clerk,  a  justice  of  the 
peace,  a  county  auditor,  or  the  deputy  auditor,  or  a  notary  public:  Bal- 
linger's  Codes,  sec,  4526, 

Wyoming:  By  a  judge  or  clerk  of  a  court  of  record,  or  any  court 
commissioner  appointed  under  or  by  authority  of  the  laws  of  the  United 
States,  any  county  clerk,  justice  of  the  peace,  or  notary  public  withia 
the  state.  Any  clerk  of  a  court  of  record  within  or  without  the  state: 
Rev.   Stats.,   sees.   2471,   2472. 

Without  the  State,  in  the  United  States,  and  within  the  ju- 
risdiction of  the  officer,  either  a  justice,  judge  or  clerk  of  any 
court  of  record  of  the  United  States ;  or  a  justice,  judge,  or  clerk 
of  any  court  of  record  of  any  state ;  or  a  commissioner  appointed 
by  the  governor  of  this  state  for  that  purpose ;  or  a  notarv  public ; 
or  any  other  officer  of  the  state  where  the  acknowledgment  is 
made  authorized  by  its  laws  to  take  such  proof  or  acknowledg- 

NOTE.— California,  C,  C,  sec,  1182, 

Ala:-ka :  Deeds  to  be  executed  according  to  law  of  place  where  exe- 
cuted and  be  acknowledged  before  any  judge  of  a  court  of  record,  justice 
of  the  peace  or  notarj'  public  or  other  officer  authorized  by  the  laws  of 
the  place  to   take   acknowledgment   of   deeds   therein   or   before   any   com- 


Acknowledgment  and  Proof  of  Instrument.  19 

missioners  appointed  for  that  purpose:  Codes,  pt.  5,  c.  11,  sec.  82,  p.  371. 
In  such  cases  if  the  aclinowledgincnt  is  not  taken  under  the  seal  of  a 
notary  public  or  the  seal  of  a  clerk  of  a  court  of  record,  it  must  have  a 
cortiilcate  of  a  clerk  of  a  court  of  record,  that  the  acknowledging  ollicer 
was  at  the  date  thereof  such  as  he  is  therein  represented  to  be,  and  that 
he  believes  the  signature  of  such  person  subscribed  thereto  to  be  giMiu- 
ine,  and  that  the  deed  is  executed  according  to  the  laws  of  such  state, 
territory  or  district:  Id.,  sec.  84,  p.  371. 

Arizona:  A  clerk  of  a  court  of  record  having  a  seal,  a  notary  public, 
county  recorder,  justice  of  the  peace:  C.  C,  par.  741. 

Colorado:  A  secretary  of  state,  clerk  of  a  court  of  record  having 
a  seal,  a  notary  public,  a  commissioner  of  deeds  for  Colorado,  or  be- 
fore any  other  olUcer  authorized  by  law  to  take  acknowledgments. 
All  such  oflicers  must  certify  under  their  official  seal,  and  when  the 
acknowledgment  is  taken  by  any  of  the  oflicers  not  above  exi)ress!y 
named,  the  same  certificate  prescribed  in  note  4  to  section  1181,  Cali- 
fornia Civi]  Code,  supra:   Mill's  Stats.,  sec.  439. 

Idaho,  C.  C,  sec.  2421,  and  Montana,  C.  C,  sec.  1602,  the  same  as  in 
California. 

Nevada:  A  judge  or  clerk  of  any  court  of  the  United  States,  or  of  any 
state  or  territory  having  a  seal,  or  by  a  commissioner  appointed  by  the 
governor  of  Nevada,  or  by  a  justice  of  the  peace  of  any  county  of  any 
state  or  territory  in  the  United  States  accompanied  with  the  certificate 
of  the  clerk  of  a  court  of  record  of  the  county  having  a  seal,  as  to  the 
official  character  of  the  justice  and  the  authenticity  of  his  signature: 
Comp.  Laws,  sec.  2642. 

In  New  Mexico,  ' '  before  any  United  States  court  or  court  of  any 
state  or  territory,  within  said  United  States,  having  a  seal,  or  by  any 
clerk  of  any  of  said  courts":  Comp.  Laws,  sec.  3944.  Or  before  any  no- 
tary public  having  a  seal,  or  before  any  clerk  of  any  court  of  record, 
having  a  seal:  Id.,  sec.  3931. 

North  Dakota,  C.  C,  sec.  3.575,  the  same  as  in  California. 

South  Dakota,  C.  C,  sec.  972,  the  same. 

Utah:  By  a  judge  or  clerk  of  any  court  in  the  United  States,  or  of 
any  state  or  territory  having  a  seal,  or  by  a  notary  public,  or  by  a. 
commissioner  appointed  by  the  governor  of  the  state  for  that  purpose: 
Eev.  Stats.,  sec.  1985. 

Washington:  Deeds  or  conveyances  of  lands,  in  any  other  state  or 
territory  of  the  United  States  made  in  the  form  prescribed  for  executinij 
and  acknowledging  deeds  within  this  state,  may  be  acknowledged  before 
any  person  authorized  to  take  acknowledgments  of  deeds  by  the  laws 
of  the  state  or  territory  wherein  it  is  taken,  or  before  any  commissioner 
appointed  by  the  governor  of  this  state  for  such  purpose:  Ballinger's 
Codes,  sec.  4527. 

Wyoming:  Any  officer  authorized  to  take  acknowledgments  at  the 
place  where  it  is  taken.  In  all  such  cases  the  officer  must  certify  that 
the  "signature  appended  to  the  acknowledgment  is  genuine":  Rev. 
Stats.,  sees.  2743,  2744.  But  they  must  be  executed  according  to  the 
laws  of  Wyoming,  and  when  "executed  according  to  the  laws  of  that 
state,  and  acknowledged  before  a  clerk  of  a  court  of  record,  county 
clerk  or  a  commission  ....  has  the  same  effect  as  if  executed  an-l 
acknowledged  in  this  state:  Id.,  sec.  2745.  Query,  If  acknowledged  be- 
fore anv  officer  except  a  clerk  of  a  court  of  record,  county  clerk  or 
commissioner,  do  instruments  have  the  same  effect  as  if  executed  in 
Wyoming? 

Without  the  United  States,  before  either  a  minister,  com- 
missioner, or  charp^e  d'affaires  of  the  United  States ;  or  a  consul, 
vice-consul,  or  consular  agent  of  the  United  States,  resident  in 
the  country  where  the  proof  or  acknowledgment    is  made;    or  a 


20  Ne;w  Book  oi?  Forms. 

judge  of  a  court  of  record  of  the  country  where  the  proof  or  ac- 
knowledgment is  made;  or  commissioners,  appointed  for  such 
purposes  by  the  governor  of  the  state ;  or  a  notary  public. 

NOTE.— California,  C.  C,  sec.  1183. 

Alaska:  Deeds  executed  in  a  forei^  country,  executed  according  to 
its  laws  before  a  notary  public  therein,  any  minister  plenipotentiary, 
minister  extraordinary,  minister  resident,  charg^  d'affaires,  commis- 
sioner or  consul  of  the  United  States  appointed  to  reside  therein.  The 
officer  must  certify  it  under  his  hand,  and  the  notary  public  must  affix 
his  seal  of  office  to  his  certificate:  Codes,  pt.  5,  c.  11,  sec.  85,  p.  371. 

Arizona:  A  minister,  commissioner,  or  charge  d'affaires  of  the  United 
States,  resident  and  accredited  in  the  country  where  the  acknowledg- 
ment is  made.  A  consul  general,  consul,  vice-consul,  commercial  agent, 
viee-commercial  agent,  deputy  consul  or  consular  agent  of  the  United 
States  resident  in  the  country  where  the  acknowledgment  is  made,  a 
notary  public:   C.  C,  par.  742. 

Colorado:  Before  a  court  of  record  of  any  republic,  kingdom,  empire, 
state,  principality,  or  province  having  a  seal,  it  being  certified  by  a 
judge  or  justice  of  such  court  to  have  been  made  before  such  court, 
under  the  seal  of  the  court;  before  the  mayor,  or  other  chief  officer  of 
any  city  or  town  having  a  seal,  certified  under  said  seal,  before  a  consul 
of  the  United  States,  and  his  consulate  seal:  Mill's  Stats.,  sec.  439. 

Idaho,  C.  C,  sec.  2422,  and  Montana,  C.  C,  sec.  1603,  the  same  as  in 
California. 

Nevada:  By  some  judge  or  clerk  of  any  court  of  any  state,  kingdom 
or  empire  having  a  seal,  or  by  a  notary  public  therein,  or  by  a  minister, 
commissioner,  or  consul  of  the  United  States  appointed  to  reside  therein: 
Comp.  Laws,  sec.  2642.  Held,  that  the  words  "consul  of  the  United 
States"  includes  "vice-consul  general":  Evans  v.  Lee,  11  Nev.  194. 

In  New  Mexico,  "before  the  court  or  clerk  of  any  state,  kingdom  or 
empire  having  a  seal,  or  by  the  magistrate,  or  supreme  power  of  any 
city,  who  may  have  a  seal:  Comp.  Laws,  sec.  3944;  before  any  notary 
public,  having  a  seal,  a  consul  or  vice-consul  of  the  United  States,  and 
before  a  judge  of  any  court  of  record  having  a  seal.  In  such  case  the 
signatures  of  the  judge  and  his  official  character  "must  be  certified  in 
the  usual  manner":   Comp.  Laws,  sec.  3970. 

North  Dakota,  C.  C,  sec.  3576,  the  same  as  in  California,  except  com- 
missioners appointed  for  that  purpose  are  omitted. 

South  Dakota,  C.  C,  sec.  973,  the  same  as  in  California. 

Utah:  By  a  judge  or  clerk  of  any  state,  kingdom  or  empire  having  a 
seal,  or  any  notary  public  therein,  any  ambassador,  minister,  commis- 
sioner, or  consul  of  the  United  States  appointed  to  reside  therein:  Rev. 
Stats.,  sec.   1985. 

"Washington:  Before  any  minister  plenipotentiary,  secretary  of  lega- 
tion, charge  d'affaires,  consul  general,  consul,  vice-consul,  consular  agent 
or  commercial  agent  ay^pointed  by  the  government  of  the  United  States, 
a.  notary  public,  the  proper  officer  of  any  court,  the  mayor  or  chief 
magistrate  of  a  town,  city  or  other  municipal  corporation:  Ballinger's 
Codes,  sec.  4532.  The  officer  taking  it  shall  certify  the  same  by  a  certifi- 
cate written  on  or  annexed  to  said  instrument,  which  certificate  shall 
be  under  his  official  seal,  if  any  he  has,  and  such  certificate  shall  recite 
in  substance  that  the  instrument  was  acknowledged  by  the  person  or 
persons  whose  name  or  names  are  signed  thereto  as  grantor  or  principal 
before  him  as  such  officer,  with  the  date  of  such  acknowledgment:  Id., 
■ec.  4531. 

Wyoming:  To  be  executed  according  to  the  laws  of  this  state  before 
a  counsel  general,  consul,  or  vice-consul  of  the  United  States — all  under 
Uieir  teals  of  office:  Rev.  Stats.,  sec.  2746. 


Acknowledgment  and  Proof  oe  Instrument.  21 

Acknowledgment  by  Deputy. — When  any  of  the  officers 
mentioned  in  the  four  preceding  sections  (1180,  1181,  1182,  1183) 
are  authorized  by  law  to  appoint  a  deputy,  the  acknowledgment 
01  proof  may  be  taken  by  the  deputy  in  the  name  of  the  principal. 

NOTE.— California,  C.  C,  sec.  1189.  Idaho,  C.  C,  sec.  2423.  Colo- 
rado: If  executed  in  the  state,  a  recorder's  deputy  clerk  may:  Mill's 
Stats.,  sec.  439.  Montana,  C.  C,  sec.  1604.  North  Dakota,  C.  C,  sec 
3587.  South  Dakota,  C.  C,  sec.  973.  Utah,  llev.  Stats.,  sec.  1987.  Wash- 
ington: A  deputy  county  auditor  may:  BalUnger's  Codes,  see.  401;  and 
as  to   others,   the  same   as  in   California. 

Married  Woman's  Acknowledgment. — A  conveyance  by  a 
married  woman  has  the  same  effect  as  if  she  were  immarried,  and 
may  be  acknowledged  in  the  same  manner:  C.  C,  sec  1187. 

NOTE.— California,  C.   C,  sec.    1187. 

Alaska:  If  a  married  woman  residing  in  the  district  joins  with  her 
husband  in  a  conveyance  of  property  in  the  district,  she  must  acknowl- 
edge "that  she  executed  such  deed  freely  and  voluntarily."  If  she  does 
not  reside  in  the  district  and  joins  in  the  deed  conveying  land  in  the 
district,  the  conveyance  has  the  same  effect  as  if  she  were  sole,  and  she 
makes  the  acknowledgment  as  if  she  were  sole:  Codes,  pt.  5,  c  11,  sees. 
85,  87,  p.  371. 

Arizona :  As  to  married  women,  see  Form  of  Acknowledgment  for  Ari- 
Eona,  post. 

Idaho:  As  to  married  women,  see  Forms.  Montana,  C.  C,  sec.  1606, 
the  same  as  in  California.  Nevada:  See  Forms,  post.  New  Mexico:  See 
Forms,  post.  North  Dakota.  C.  C,  sec.  3578;  see  Forms,  post.  South 
Dakota,  C.  C,  sec.  975;  see  Forms,  post. 

Utah:  Rev.  Stats.,  sees.  1188,  1200,  the  same  as  in  California;  see 
Forms,    post. 

Washington:   See  Forms,  post. 

Wyoming:  She  may  by  deed  or  mortgage  convey  her  real  estate  in 
like  manner  as  if  she  were  unmarried:  Rev.  Stats.,  sec.  2732.  Under  the 
chapter  relating  to  the  execution  of  conveyances,  it  is  provided  that 
when  she  does  not  reside  in  the  state  and  joins  her  husband  in  the 
deed,  it  has  the  same  effect  as  if  she  were  sole  and  the  acknowledgment 
or  proof,  etc.,  may  be  made  as  if  she  were  sole:  Id.,  sec.  2747.  The  same 
provision  is  found  in  the  Alaska  statutes:  See  the  only  Statutory  Form, 
post. 

Acknowledgment  not  to  be  Taken,  When, — An  acknowledg- 
ment must  not  be  taken,  unless  the  officer  knows,  or  has  satisfac- 
tory evidence,  on  the  oath  or  affirmation  of  a  credible  witness,  that 
the  person  making  it  is  the  individual  who  is  described  in  and 
who  executed  the  instrument ;  or,  if  executed  by  a  corporation, 
that  the  person  making  it  is  the  president  or  secretary'  of  such 
corporation  (see  note  to  Form  No.  2  for  amendment  to  section 
1 185  of  session  of  1905)  :  C.  C,  sec.  1185. 

NOTE.— California,   C.   C,   sec.    1185. 

Alaska:  Codes,  pt.  5,  c  11,  sec  88,  p.  371. 

Arizona:   In  meaning  the  same  as   in   California. 

Colorado:  No  acknowledgment  shall  be  taken  unless  the  person  making 
it  shall  be  personally  known  to  the  officer  to  be  the  identical  person  he 
represents  himself  to  be,  or  shall  be  proved  to  be  such  by  at  least  on« 


22  New  Book  of  Forms. 

credible  person  known  to  such  officer;  but  it  is  not  necessary  to  state 
that  fact  in  the  certificate  except  when  the  certificate  is  attached  to 
conveyance  or  mortgage  of  a  homestead.  In  such  ease  the  certificate 
shall  contain  such  additional  words:   Mill's  Stats.,  sec.  443. 

Idaho,  C.  C,  sec.  2424,  Montana,  C.  C,  sec.  1605,  and  Nevada,  Comp. 
Laws,  sec  2645,  the  same  as  in  California. 

North  Dakota,  C.  C,  sec.  3577,  the  same,  except  it  must  be  known 
to  the  officers  that  a  person  acknowledging  for  a  corporation  was  au- 
thorized by  the  corporation  by  resolution  of  its  board  of  directors  to 
make  it. 

South  Dakota,  C.  C,  sec.  974,  the  same  as  in  California. 

Utah.  Rev.  Stats.,  sec.  39S8,  the  same  as  in  California,  except  as  to 
corporations;  as  to  them,  see  Forms,  post. 

Duty  of  Officer. — An  officer  taking  the  acknowledgment  of 
an  instrument  must  indorse  thereon,  or  attach  thereto  a  certifi- 
cate substantially  in  the  forms  prescribed  by  law. 

NOTE. — California,  C.  C,  sec.  1188.  No  statutory  forms.  See  Forms 
of  Acknowledgment,  post.  Arizona:  The  same  as  in  California;  C.  C, 
par.  745;  see  Forms,  post.  Montana,  C.  C,  sec.  1608,  the  same  as  in 
California.  Nevada:  See  Forms,  post.  New  Mexico:  See  Forms,  post. 
North  Dakota,  C.  C,  sec.  3584.  South  Dakota,  C.  C,  sec.  981;  and  Utah, 
Bev,  Stats.,  sec.  1989,  the  same  as  in  California.     See  Forms,  post. 

Authentication  of  Certificates. — Officers  taking  and  certify- 
ing acknowledgments  or  proof  of  instruments  for  record,  must 
authenticate  them  by  their  signatures,  followed  by  the  names  of 
their  offices ;  also,  their  seals  of  office,  if  by  the  laws  of  the  state 
or  country  where  it  is  taken,  or  by  authority  of  which  they  are 
acting,  they  are  required  to  have  official  seals. 

NOTE.— California:  Sections  1180,  1193,  1194,  Civil  Code,  refer  to  two 
classes  of  dissimilar  instruments;  one  is  an  "Acknowledgment,"  and  the 
other  the  "Proof  of  an  Instrument."  Commencing  with  section  1195  to 
and  including  section  1201  the  Civil  Code  refers  entirely  to  the  proof  of 
instruments  in  writing.  The  difference  between  the  two  is  of  the  great- 
est importance.  Any  person  who  has  intelligence  sufficient  to  write  his 
name,  and  enough  mechanical  skill  to  enable  him  to  scratch  a  name 
into  a  printed  blank  certificate,  and  vitality  enough  to  lick  a  gummed 
paper  disk,  and  is  not  habitually  too  unsteady  to  distinguish  between  a 
pile  of  seals  in  his  custody  and  a  brass  paper  weight,  with  sight  suffi- 
ciently acute  that  he  may  press  his  seal  of  office  reasonably  near  the 
aforesaid  disk  not  to  be  altogether  off  the  instrument  he  is  doing  his 
best  to  authenticate,  and  has  sufficient  political  influence  in  his  ward 
to  secure  his  appointment,  may  exercise  the  office  of  justice  of  the 
peace,  deputy  clerk  or  deputy  recorder,  or  notary  public  under  the  laws 
of  California,  and  take  acknowledgment  of  written  instruments  with 
credit  to  himself  and  the  influence  that  is  responsible  for  his  appoint- 
ment; but  he  would  be  altogether  lost  should  he  attempt  to  take  proof 
01  a  written  instrument  under  sections  1195,  1196,  1197,  1198,  1199,  1200, 
of  the  California  Civil  Code  in  manner  and  form  as  provided  by  law. 
That  class  of  judicial  work  belongs  to  judges  learned  in  the  law. 

It  is  worthy  of  notice  that  section  1193  makes  a  difference  between 
the  manner  of  authenticating  acknowledgments  and  making  proofs  of 
instruments.  If  the  instrument  is  "for  record,"  the  officer  must  affix 
his  signature  and  seal  of  office;  if  it  is  not  to  be  recorded,  the  officer's 
signature  appears  to  be  sufficient;  but  when  this  is  read  in  connection 


ACKNOWUSDGMENT   AND    PrOOF   OF   INSTRUMENT.  23 

with  section  1948  of  the  Code  of  Civil  Procedure  allowing  every  private 
writing  to  be  acknowledged  or  proved,  and  when  acknowledged  or 
proved  to  be  prima  facie  evidence  of  their  execution;  and  when  the 
sections  above  referred  to  are  read  in  connection  with  the  first  line  of 
section  794,  and  subdivision  7,  where  it  is  said  that  he  must  keep  an 
ofEcial  seal,  and  with  it  must  authenticate  his  official  acts,  it  is  evident 
that  he  must  sign  and  seal  all  acknowledgments  and  proofs  of  instru- 
ments officially  certified  by  him. 

Alaska:    See  Forms. 

Arizona:  The  general  form  given  in  paragraphs  744  and  746  of  the 
Civil  Code  appearing  in  Forms  of  Acknowledgments,  post,  contemplates 
that  the  identity  of  the  person  acknowledging  an  instrument  may  be 
proved  by  the  oath  of  a  witness;  but  the  writer  of  this  note  is  unable 
to  find   any  statute   governing  the   matter. 

Idaho,  C.  C,  sec.  2431,  Montana,  C.  C,  sec.  1613,  and  Nevada,  Comp. 
Laws,  sees.  2643,  2644,  the  same  as  in  California. 

North  Dakota,  C.  C,  see.  3568,  the  same  as  in  California,  with  a  pro- 
vision that  judges  and  clerks  of  courts  of  record  must  affix  the  seals 
of  their  courts,  and  mayors  of  cities  the  city  seals.  Also  under  the 
act  of  1901,  Laws,  p.  159,  immediately  following  his  signature  a  notary 

must  write:  "My  commission  expires ,  19 . "     He  may  have 

the   date   of   the   expiration   of   his   commission   engraved   on   his   seal. 

South  Dakota,  C.  C,  sec  981,  the  same  as  in  California,  with  the  ad- 
dition:  "Mayors  of  cities  must  affix  the  city  seal." 

Utah:  The  officer  shall  grant  a  certificate  and  indorse  or  annex  it  to 
the  instrument.  If  by  a  judge  or  clerk,  then  his  hand  and  the  seal  of 
the  court.  By  any  other,  under  his  hand  and  official  seal:  Rev.  Stats., 
sec   1987. 

Wyoming,  Rev.  Stats.,  sees.  2741-2746.  A  notary  public,  justice  of 
the  peace,  and  commissioner  of  deeds  for  the  state  must  add  to  his  cer- 
tificate the  date  on  which  his  commission  expires:  Id.,  sec  2753. 

Justice  of  the  Peace,  Taking. — The  certificate  of  proof  or 
acknowledgment  if  made  before  a  justice  of  the  peace,  when  used 
in  any  county  other  than  that  in  which  he  resides,  must  be  accom- 
panied by  a  certificate  under  seal  of  the  clerk  of  the  county  in 
which  the  justice  resides,  that  such  justice,  at  the  time  of  taking 
such  proof  or  acknowledgment,  was  authorised  to  take  the  same, 
and  that  the  clerk  is  acquainted  with  his  handwriting,  and  believes 
that  the  sigfnature  to  the  original  certificate  is  g^enuine. 

NOTE.— California.  C.  C,  sec  1194;  Alaska,  Codes,  pt.  5.  c  11,  sees. 
73-118.  In  Arizona  it  does  not  appear  to  be  necessary.  Idaho,  C.  C, 
sec.  2432.  Montana,  C.  C,  sec  1614,  Nevada,  Comp.  Laws,  sec.  2642, 
North  Dakota.  C.  C,  sec  3587,  and  South  Dakota,  C.  C,  sec.  981,  the 
same  as  in  California. 

Utah:  A  justice  of  the  peace  is  forbidden  to  take  acknowledgments 
of  instruments  required  to  be  recorded:   Rev.  Stats.,  sec.  980. 

Washington:  Unless  the  acknowledgment  be  taken  before  a  commis- 
sioner appointed  by  the  governor  or  by  the  clerk  of  the  court  of  record 
of  said  state  or  territory,  or  by  a  notary  public  or  other  offi<^or  having  a 
seal  of  office,  then  such  deed  shall  have  attached  thereto  a  certificate  of 
the  clerk  of  the  court  of  record,  under  the  seal  of  said  county  or  district, 
or  a  certificate  of  any  other  proper  certifying  officer  of  said  district  or 
county,  that  the  person  whose  name  is  subscribed  to  the  certificate  was 
at  the  date  thereof  such  officer  as  he  therein  represents  himself  to  be, 
that  he  is  authorized  by  law  to  take  it,  and  that  he  verily  believes  the 
signature  of  the  person  subscribed  is  genuine:  Ballinger's  Codes,  sec. 
^20. 


24  New  Book  of  Forms. 

Wyoming:  Such  certificate  is  Becessary  when  an  acknowledgment  ia 
taken  by  any  officer,  who  has  no  seal,  irres^Dective  of  his  residence:  Bev. 
Stats.,  s'ec.  27-44. 

Proof  of  Execution. — Proof  of  the  execution  of  an  instru- 
ment, when  not  acknowledged,  may  be  made  either:  i.  By  the 
party  executing  it,  or  either  of  them ;  or  2.  By  a  subscribing  wit- 
ness, or  3.  By  other  witnesses,  in  cases  mentioned  in  section  1198. 

NOTE.— California,  C.  C,  sec.  1195;  Alaska  Codes,  pt.  5,  c.  11,  sees.  73- 
118;  Idaho,  C.  C,  sec.  2433;  and  Montana,  C.  C,  sec.  1615,  the  same  as  in 
California. 

Nevada:  The  statutory  provisions  are  in  substance  the  same  as  in 
California  as  to  the  manner  and  effect  of  proof  of  execution  when  the 
execution  of  an  instrument  is  witnessed  but  not  acknowledged:  Comp. 
Laws,  sees.  2641-2657. 

New  Mexico:  The  only  provision  is  as  follows:  The  certificate  must 
express  the  fact  that  the  acknowledgment  was  made  the  same  as  in  the 
forms  of  acknowledgment,  post;  and  continues,  or  that  the  person  exe- 
cuting the  instrument  "was  proved  to  be  such  person  by  the  testimony 
of  at  least  two  reliable  witnesses":   Comp.   Laws,   sec  3949. 

North  Dakota,  C.  C,  sec.  3579,  the  same  as  in  California. 

Oregon:  Proof  may  be  made  of  any  conveyance,  and  by  a  subscribing 
witness.  He  must  state  his  place  of  residence,  and  that  he  knew  the 
person  described  in  snd  who  executed  such  conveyance;  and  such  proof 
shall  not  be  taken  unless  the  officer  is  personally  acquainted  with  the 
subscribing  witness,  or  has  satisfactory  evidence  that  he  is  the  same 
person  who  was  a  subscribing  witness  to  such  instrument:  Codes  and 
Stats.,  sec.  5350.  The  officer  must  indorse  the  certificate,  signed  by  him- 
self, on  the  certificate,  and  in  it  shall  set  forth  the  matters  required  to 
be  done,  known,  or  provedL,  and  the  names  of  the  witnesses  examined  be- 
fore him.  and  their  places  of  residence,  and  the  substance  of  their  evi- 
dence: Id.,  sec.  5354. 

When  any  grantor  is  dead,  or  out  of  the  state,  or  refuses  to  ackno'"'!- 
edge  his  deed,  and  all  the  subscribing  witnesses  are  dead,  or  reside  out 
of  the  state,  the  proof  may  be  made  before  the  circuit  court,  or  any 
judge  thereof,  by  proving  the  handwriting  of  the  grantor  and  of  any 
subscribing  witness:  Id.,  sec.  5351.  It  has  been  held  that  the  certificate 
must  state  that  the  witness  was  sworn:  Mclntire  v.  Kamm,  12  Or.  253, 
7  Pac.  27.  Witness  may  be  compelled  to  attend  the  same  as  in  Califor- 
nia: Id.,  sees.  5352,  5353.  For  certificate  of  proof,  see  Forms.  South 
Dakota,  C.  C,  sec.  976.  Utah,  Bev.  Stats.,  sees.  1191,  1198.  A  special 
form  to  be  used  in  such  proceedings  is  prescribed:  Id.,  sec.  1994,  See 
Forms,  post. 

Proof  by  Subscribing  Witness. — If  by  a  subscribing  witness, 
he  must  be  personally  known  to  the  officer  to  be  the  person  whose 
name  is  subscribed  to  the  instrument  as  a  witness,  or  must  be 
proved  to  be  such  by  the  oath  of  a  credible  witness.  The  sub- 
scribing witness  must  prove  that  the  person  whose  name  is  sub- 
scribed to  the  instrument  as  a  party  is  the  person  described  in  it, 
and  that  such  person  executed  it,  and  that  the  witness  subscribed 
his  name  thereto  as  a  witness. 

NOTE. — California,  C.  C,  sees.  1196,  1197;  Alaska  Codes,  pt.  5,  c.  11, 
Bees.  73-118a,  372;  Idaho,  C.  C,  sees.  2434,  2435,  Montana,  C  C^  sees. 
1616,  1617,  North  Dakota,  C.  C,  sec  3580,  and  South  Dakota,  C  C, 
Bee  977,  the  same  as  in  California, 


Acknowledgment  and  Proof  op  Instrument.  25 

Proof     of     Instruments     Established. — Handwriting. — The 

execution  of  an  instrument  may  be  established  by  a  proof  of  the 
handwriting  of  the  party  and  of  a  subscribing  witness  in  the  fol- 
lowing cases:  i.  When  the  parties  and  all  the  subscribing  wit- 
nesses are  dead ;  or  2.  When  the  parties  and  all  the  subscribing 
witnesses  are  nonresidents  of  the  state ;  or  3.  When  the  place  of 
their  residence  is  unknown  to  the  party  desiring  the  proof,  and 
cannot  be  ascertained  by  the  exercise  of  due  diligence;  or  4. 
When  the  subscribing  witness  conceals  himself,  or  cannot  be  found 
by  the  officer  by  the  exercise  of  due  diligence  in  attempting  to 
serve  the  subpoena  or  attachment ;  or  5.  In  case  of  the  continued 
failure  or  refusal  of  the  witness  to  testify,  for  the  space  of  one 
hour  after  his  appearance. 

MOTE.— California,  C.  C,  sec  1198;  Alaska  Codes,  pt.  5,  c.  11,  sees. 
73-118;  Idaho,  C.  C,  sec.  2436,  Montana,  C.  C,  sec.  1618,  North  Dakota, 
C,  C,  sec.  2581,  and  South  Dakota,  C.  C,  sec.  978,  the  same  as  in  Cali- 
fornia. 

Evidence — What  It  Must  Prove. — The  evidence  taken  un- 
der the  preceding  section  must  satisfactorily  prove  to  the  officer 
the  following  facts:  i.  The  existence  of  one  or  more  of  the  con- 
ditions mentioned  therein ;  and  2.  That  the  witness  testifying  knew 
the  person  whose  name  purports  to  be  subscribed  to  the  instru- 
ment as  a  party,  and  is  well  acquainted  with  his  signature,  and 
that  it  is  genuine ;  and  3.  That  the  witness  testifying  personally 
knew  the  person  who  subscribed  the  instrument  as  a  witness,  and 
is  well  acquainted  with  his  signature,  and  that  it  is  genuine ,  and 
4.  The  place  of  residence  of  the  witness. 

NOTE. — California,  C.  C,  sec  1199;  Alaska  Codes,  pt.  5,  c.  11,  sees.  73- 
118;  Idaho,  C.  C,  sec.  2437,  Montana,  C.  C,  sec.  1619,  North  Dakota,  C. 
C,  sec.  3582,  and  South  Dakota,  C.  C,  sec.  979,  the  same  as  in  California. 

Certificate  of  Proof — What  to  Contain, — An  officer  taking 
proof  of  the  execution  of  any  instrument  must,  in  h's  certificate 
indorsed  thereon  or  attached  thereto,  set  forth  all  the  matters  re- 
quired by  law  to  be  done  or  known  by  him,  or  proved  before  him 
on  the  proceeding,  together  with  the  names  of  all  the  witnesses 
examined  before  him,  their  places  of  residence  respectively^  and 
the  substance  of  their  testimony. 

NOTE. — Califomia,  C.  C,  sec  1200;  Alaska  Codes,  pt  5,  c  11,  sees. 
73-118. 

Colorado:  When  an  instrument  in  ■wTiting  is  not  acknowledged  accord- 
ing to  law  at  the  time  of  its  execution,  it  may,  at  any  other  time,  be 
acknowledged  by  the  maker,  or  proof  may  be  made  of  its  execution  be- 
fore any  officer"  authorized  to  take  acknowledgment  of  deeds.  If  the 
officer  does  not  know  of  his  own  knowledge  the  person  offering  to  prove 
the  execution,  then  he  must  ascertain  from  the  testimony  of  at  le.ost 
one  competent  and  credible  witness,  sworn  and  examined  by  him,   that 


26  New  Book  of  Forms. 

such  person  was  a  subscribing  witness.  The  officer  must  examine  the 
witness  under  oath  and  reduce  his  testimony  to  writing.  The  witness 
must  sign  his  testimony.  The  statute  then  continues,  providing  that 
a  certificate  of  proof  shall  be  issued,  and  what  it  shall  contain,  but 
a  form  is  not  given,  A  form  will  be  found  among  other  forms,  post, 
containing  all  the  essentials  of  the  statute:   Mill's  Stats.,  sec.  444. 

Idaho,  C.  C,  sec.  2438;  Montana,  C.  C,  sec.  1620;  North  Dakota,  C.  C, 
see.  35S3;  a  form  is  also  provided  for  a  deputy  sheriff  who  may  execute 
a  conveyance  in  the  name  of  the  sheriff.  South  Dakota,  C.  C,  sec.  980, 
tne  same  as  in  California,  except  as  to  a  deputy  sheriff. 

Authority  of  Officers  Taking  Proof. — Officers  authorized 
to  take  the  proof  of  instruments  are  authorized  in  such  proceed- 
ings: I.  To  administer  oaths  or  affirmations,  as  prescribed  in  sec- 
tion 2093,  Code  of  Civil  Procedure ;  2.  To  employ  and  swear  in- 
terpreters ;  3.  To  issue  subpoena,  as  prescribed  in  section  1986, 
Code  of  Civil  Procedure;  4.  To  punish  for  contempt,  as  pre- 
scribed in  sections  1991,  1993,  1994,  Code  of  Civil  Procedure. 
The  civil  damages  and  forfeiture  to  the  party  aggrieved  are 
prescribed  in  section  1992,  Code  of  Civil  Procedure. 

>^OTE. — California,  C.  C,  sec.  1201;  Alaska  Codes,  pt.  5,  c  11,  sees. 
73-118;  Idaho.  C.  C,  sec.  2439;  Montana,  C.  C,  sec.  1621,  North  Dakota, 
C.  C, 'sec.  3591,  and  South  Dakota,  C.  C.,  sec  983,  the  same  as  in  Cali- 
fomia^ 

Correcting  Certificates. — When  the  acknowledgment  or 
proof  of  the  exeaition  of  an  instrument  is  properly  made,  but 
defectively  certified,  any  party  interested  may  have  an  action  to 
obtain  a  judgment  correcting  the  certificate. 

NOTE. — California,  C.  C,  see.  1201;  Alaska  Codes,  pt.  5,  c.  11,  sees. 
73-118;  Idaho,  C.  C,  sec.  2440,  Montana,  C.  C,  sec.  1622,  North  Dakota, 
C.  C,  see.  3588,  and  South  Dakota,  C.  C,  sec.  982,  the  same  as  in  Cali- 
fornia. 

Proof  of  Instruments  by  Actions. — Any  person  interested 
under  an  instrument  entitled  to  be  proved  for  record  may  institute 
an  action  to  obtain  a  judgment  proving  such  instrument.  A  cer- 
tified copy  of  the  judgment  in  a  proceeding  instituted  under  either 
of  the  two  preceding  sections,  showing  the  proof  of  the  instru- 
ment, and  attached  thereto,  entitles  such  instrument  to  record, 
with  like  effect  as  if  acknowledged. 

NOTE.— California,  C.  C,  sees.  1203-1205;  Alaska  Codes,  pt.  5,  c.  11, 
Bees.  73-118;  Idaho,  C.  C,  sees.  2441,  2442,  Montana,  C.  C,  sees.  1623, 
1624,  North  Dakota,  C.  C,  sees.  3589,  3590,  and  South  Dakota,  C.  C,  sec 
982  (one  sectiwi  embraces  the  two  above),  the  same  as  in  California. 


Acknowledgment  and  Proof  of  Instrument.  27 

No.    6. — Acknowledgment — Notary   Public — Wife. 

State  of  California, 
County  of  Butte, — ss. 

On  this  second  day  of  May,  in  the  year  one  thousand  nine  hun- 
dred and  Hve,  before  me,  W.  B.,  a  notary  public  in  and  for  the 
said  Butte  county,  personally  appeared  M  C,  wife  of  G.  C, 
known  to  me  to  be  the  person  whose  name  is  subscribed  to  the 
within  instrument  and  acknowledged  to  me  that  she  executed  the 
same. 

No.     7. — Acknowledgment — Notary     Public — Husband     and 

Wife, 

State  of  California, 
County  of  San  Mateo, — ss. 

On  this  second  day  of  May,  in  the  year  one  thousand  nine  hun- 
dred and  Hve,  before  me,  H.  W .,  notary  public  in  and  for  the 
said  San  Mateo  county,  state  of  California,  personally  appeared 
/.  A.  and  M.  A.,  his  wife,  known  to  me  to  be  the  persons  whose 
names  are  subscribed  to  the  within  instrument,  and  they  and 
each  of  them  acknowledged  to  me  that  they  and  each  of  them,  re- 
spectively, executed  the  same. 

No.     8. — ^Acknowledgment — Notary     Public — Husband     and 
Wife — Proven. 

State  of  California, 
County  of  Sonoma, — ss. 

On  this  sec&nd  day  of  July,  in  the  year  one  thousand  nine  hun- 
dred and  five,  before  me,  S.  D.,  a  notary  public  in  and  for  the 
count)^  of  Sonoma,  personally  appeared  /.  S.  and  S.  S.,  his  zinfe, 
satisfactorily  proved  to  me  to  be  husband  and  wife,  and  the  per- 
sons described  in  and  who  executed  the  within  instrument,  by 
the  oath  of  G  C,  a  competent  and  credible  witness  for  that  pur- 
pose, by  me  duly  sworn,  and  the  said  /.  S.  and  S.  S.,  his  zvife, 
each  of  them,  acknowledged  to  me  that  they  respectively  exe- 
cuted the  same. 

NOTE.— California,   C.    C,    sec    1189. 

No.  9. — Acknowledgment — Notary  Public — Subscribing  Wit- 
ness. 
State  of  California, 
County  of  Sonoma, — ss. 

On  this  second  day  of  May,  in  the  year  one  thousand  nine  hun- 
dred and  five,  before  me,  P.  W.,  a  notary  public  in  and  for  the 


28  New  Book  of  Forms. 

said  county,  personally  appeared  /.  M.,  known  to  me  to  be  the 
same  person  whose  name  is  subscribed  to  the  within  instrument, 
as  a  witness  thereto,  who,  being  by  me  duly  sworn,  deposed  and 
said,  that  he  resides  in  the  town  of  Sonoma;  that  he  was  present 
and  saw  /.  F.  (personally  known  to  him  to  be  the  person  de- 
scribed in  and  who  executed  the  said  instrument,  as  party  thereto), 
sign,  seal  and  deliver  the  same;  and  that  the  said  /.  F.  duly  ac- 
knowledged, in  the  presence  of  said  affiant,  that  he  executed  the 
same,  and  that  he,  the  said  affiant,  thereupon,  and  at  his  request, 
subscribed  his  name  as  a  witness  thereto. 

NOTE.— California,  C.  C,  sec  1196. 

No.    10, — Acknowledgment — Notary    Public — Party     Proven. 

State  of  California, 
County  of  Sierra, — ss. 

On  this  second  day  of  May,  in  the  year  one  thousand  nine  hun- 
dred and  five,  before  me,  F.  J.,  a  notary  public  in  and  for  the  said 
county  of  Sierra,  personally  appeared  W.  W.,  satisfactorily  proved 
to  me  to  be  the  person  described  in  and  who  executed  the  within 
instrument,  by  the  oath  of  L.  S.,  a  competent  and  credible  witness 
for  that  purpose,  by  me  duly  sworn,  and  he,  the  said  W.  W., 
acknowledged  to  me  that  he  executed  the  same. 

NOTE. — California,    C.    C,   sec.    1189. 

No.  II. — Acknowledgment — County  Clerk — General. 

State  of  California, 
County  of  Sierra, — ss. 

On  this  second  day  of  June,  in  the  year  one  thousand  nine 
hundred  and  Hve,  before  me,  W.  A.,  county  clerk  of  the  county  of 
Sierra,  personally  appeared  W.  H.,  known  to  me  to  be  the  per- 
son whose  name  is  subscribed  to  the  within  instrument,  and  ac- 
knowledged to  me  that  he  executed  the  same. 

NOTE. — California,  C.  C,  sec  1189. 

No.  12. — Acknowledgment — County  Clerk — Attorney  in  Fact. 

State  of  California, 
County  of  Santa  Clara, — ss. 

On  this  second  day  of  May,  in  the  )'ear  one  thousand  nine  hun- 
dred and  Hve,  before  me,  /.  S.,  county  clerk,  and  ex-officio  clerk 
of  the  superior  court  of  the  said  county  of  Santa  Clara,  person- 
ally appeared  /   T.,  known  to  me  to   be  the  person  whose  name  is 


Acknowledgment  and  Proof  of  Instrument.  29 

subscribed  to  the  within  instrument,  as  the  attorney  in  fact  of  JV. 
S.,  and  the  said  /.  T.,  duly  acknowlcdg-cd  to  me  that  he  sub- 
scribed the  name  of  IV.  S.  thereto  as  principal,  and  his  own  name 
as  attorney  in  fact. 

NOTE.— California,   C.   C,   sec.   1191. 

No.  13. — Acknowledgment — County  Clerk — Witness. 

State  of  California, 
County  of  San  Mateo, — ss. 

On  this  second  day  of  March,  in  the  year  one  thousand  nine 
hundred  and  ^ve,  before  me,  H.  JV.,  county  clerk  of  said  San 
Mateo  county,  personally  appeared  JV.  JV.,  personally  known  to 
me  to  be  the  person  whose  name  is  subscribed  to  the  within  in- 
strument, as  a  witness  thereto,  who,  being  by  me  duly  sworn,  de- 
posed and  said,  that  he  resides  in  Redzvood  City,  county  of  San 
Mateo,  state  of  California;  that  he  was  present  and  saw  A..  T. 
(known  to  him  to  be  the  person  described  in  and  who  executed 
the  said  instrument)  sign,  seal,  and  deliver  the  same :  and  that  the 
said  A.  T.  acknowledged  in  the  presence  of  said  affiant  that  he 
executed  the  same,  and  that  he,  the  said  affiant,  at  his  request,  sub- 
scribed his  name  as  a  witness  thereto. 

NOTE.— California,  C.   C,  sec.   1196. 

No.   14. — Acknowledgment — County  Recorder — General. 

State  of  California, 

County  of  Santa  Barbara, — ss. 

On  this  second  day  of  March,  in  the  year  one  thousand  nine 
hundred  and  fiz'e,  before  me,  A.  D.,  county  recorder  in  and  for 
the  said  Santa  Barbara  county,  personally  appeared  R.  R.,  known 
to  me  to  be  the  person  whose  name  is  subscribed  to  the  within 
instrument,  and  acknowledged  to  me  that  he  executed  the  same, 

NOTE.— California,   C.  C,  sec.   1189. 

No.    15. — Acknowledgment — County   Recorder — Witness. 

State  of  California, 
County  of  San  Mateo, — ss. 

On  this  sixteenth  day  of  May,  in  the  year  one  thousand  nine 
hundred  and  fiz'e,  before  me,  IV.  JV.,  county  recorder  in  and  for 
the  said  San  Mateo  county,  personally  appeared  H.  N.,  known  to 
me  to  be  the  person  whose  name  is  subscribed  to  the  annexed  in- 
strument, as  a  witness  thereto,  who,  being  by  me  duly  sworn,  de- 


30  New  Book  of  Forms. 

posed  and  said,  that  he  resides  in  said  county  of  San  Mateo;  that 
he  was  present  and  saw  C.  H.  (personally  known  to  him  to  be  the 
person  described  in  and  who  executed  the  said  within  instrument 
as  a  party  thereto)  sigii,  seal,  and  deliver  the  same;  and  that  the 
said  C.  H.  acknowledged,  in  the  presence  of  said  affiant,  that  she 
executed  the  same,  and  that  he,  said  affiant,  at  her  request,  sub- 
scribed his  name  as  a  witness  thereto, 

NOTE.— California,  C.  C,  sec.  1196. 

No.    1 6. — Acknowledgment — County    Recorder — ^Attorney   in 

Fact. 

State  of  California, 
County  of  Madera, — ss. 

On  this  second  day  of  July,  in  the  year  one  thousand  nine  hun- 
dred and  five,  before  me,  T  Y.,  county  recorder  in  and  for  the 
said  county  of  Madera,  personally  appeared  /.  H.,  known  to  me 
to  be  the  person  whose  name  is  subscribed  to  the  within  in- 
strument as  the  attorney  in  fact  of  G.  F.;  and  the  said  /.  H.  ac- 
knowledged to  me  that  he  subscribed  the  name  of  G.  P.  thereto  as 
principal,  and  his  own  name  as  attorney  in  fact. 

NOTE.— California,  C.  C,  sec.  1191. 

No.    17. — Acknowledgment — Justice   of  the   Peace — Husband 

and  Wife. 

State  of  California, 
County  of  San  Mateo, — ss. 

On  this  second  day  of  May,  in  the  year  one  thousand  nine  hun- 
dred and  five,  before  me,  G.  W.,  a  justice  of  the  peace  in  and  for 
the  county  of  San  Mateo,  personally  appeared  before  me  at  my 
office  in  the  county  of  San  Mateo,  California,  IV.  C,  and  R.  C, 
his  wife,  known  to  me  to  be  the  persons  whose  names  are  sub- 
scribed to  the  within  instrument,  who  each  of  them  acknowledged 
to  me  that  they  respectively  executed  the  same. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed 
my  private  seal  at  my  office  (having  no  seal  of  office),  the  day 
and  year  in  this  certificate  first  above  written. 

NOTE.— California,   C.   C,  sec.   1189. 

No.  18. — Acknowledgment — Justice  of  the  Peace — General. 

State  of  California, 
County  of  San  Diego, — ss. 

On  this  second  day  of  May,  in  the  year  one  thousand  nine  hun- 
dred and  tive,  before  me,  R.  P.,  a  justice  of  the  peace  in  and  for 


Acknowledgment  and  Proof  of  Instrument.  31 

said  county  of  San  Diego,  personally  appeared  P.  J.,  known  to 
me  to  be  the  person  whose  name  is  subscribed  to  the  said  within 
instrument,  who  acknowledged  to  me  that  he  executed  the  same. 
In  witness  whereof,  etc. 

NOTE.— California,   C.   C,  sec.   1189. 

No.  ig. — Acknowledgment — Justice  of  the  Peace — Witness. 

State  of  California, 
County  of  Sierra, — ss. 

On  this  second  day  of  May,  in  the  year  one  thousand  nine  hun- 
dred and  five,  before  me,  G.  W.,  a  justice  of  the  peace  in  and 
for  the  county  of  Sierra,  personally  appeared  before  me  in  my 
office  in  the  county  of  Sierra,  state  of  California,  IV.  W.,  known 
to  me  to  be  the  person  whose  name  is  subscribed  to  the  within 
instrument,  as  a  witness  thereto,  who,  being  by  me  duly  sworn, 
deposed  and  said,  that  he  resides  in  Redwood  City,  county  of  San 
Mateo;  that  he  was  present  and  saw  /.  L.  (personally  known  to 
him  to  be  the  same  person  described  in  and  who  executed  the 
said  instrument),  sign,  seal,  and  deliver  the  same,  and  that  the 
said  /.  L.  duly  acknowledged,  in  the  presence  of  said  affiant,  that 
he  executed  the  same,  and  that  he,  the  said  affiant,  at  his  request, 
thereupon  subscribed  his  name  as  a  witness  thereto. 

NOTE.— California,  C.  C,  sec.  1196. 

No.   20. — Acknowledgment — Justice  of  the   Peace — Attorney 

in  FacL 

State  of  California, 
County  of  Slujsta, — ss. 

On  this  second  day  of  Jtme,  in  the  year  one  thousand  nine  hun- 
dred and  fiz'e,  before  me,  H.  T.,  a  justice  of  the  peace  in  and  for 
the  county  of  Shasta,  personally  appeared  before  me  in  my  office 
in  the  county  of  Sierra,  state  of  California,  VV.  R.,  known  to  me 
to  be  the  person  whose  name  is  subscribed  to  the  within  instru- 
ment as  the  attorney  in  fact  of  J.  H.,  and  the  said  W .  R.  acknowl- 
edged to  me  that  he  subscribed  the  name  of  J.  H.  thereto  as  prin- 
cipal and  his  own  name  as  attorney  in  fact. 

NOTE.— California,   C.   C,   sec.   1191. 

No.  21. — Proof  of  Execution  of  an  Instrument  When  All  the 
Parties  and  Subscribing  Witnesses  are  Dead. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

On  this,  the  iirst  day  of  March,  in  the  year  7005,  before  me, 
/.  M.,  a  notary  public,  in  and  for  the  city  and  county  of  San 


32  New  Book  op  Forms. 

Francisco,  personally  appeared  A.  B.,  known  to  be  a  credible 
witness,  and  after  being  by  me  sworn  in  the  manner  and  form 
by  law  required,  I  exhibited  to  him  an  instrument  in  writing,  to 
wit,  the  gra)it  of  land,  to  which  this  certificate  is  attached,  upon 
which  is  written  the  signature  of  D.  E.,  grantor  and  G.  H.,  as 
subscribing  witness  to  it.  After  being  sworn,  the  said  A.  B.  tes- 
tified in  substance  that  said  instrument  has  never  been  acknowl- 
edged :  that  he  knew  personally  D.  E.,  the  grantor  and  the  sub- 
scribing witness  G.  H.,  at  the  date  of  said  instrument.  That  the 
parties  and  all  the  subscribing  witnesses  to  said  instrument  are 
dead ;  that  he  then  knew,  and  now  knows,  the  handwriting  of 
the  said  grantor  and  subscribing  witness.  That  the  signature  of 
the  grantor  D.  E.  is  genuine,  and  the  signature  of  G.  H.,  the  only 
subscribing  witness,  is  genuine.  That  he,  the  said  witness,  re- 
sides in  said  city  and  county. 

Witness  my  hand,  etc 

NOTE. — California,   C.   C,   sec.    1198. 

No.  22. — Proof  of  Execution  of  Instrument — Handwriting  of 
Maker  and  Subscribing  Witness — Parties  Nonresident. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

On  this,  the  iirst  day  of  March,  in  the  year  ipo§,  before  me,  /. 
M.,  a  notary  public  in  and  for  the  city  and  county  of  San  Fran- 
cisco, personally  appeared  A.  L.,  known  to  me  to  be  the  person 
whose  name  is  subscribed  to  the  instrument  to  w'hich  this  writing 
is  annexed  as  a  witness  to  the  genuineness  of  the  signature  of  the 
grantor,  S.  S.,  and  the  genuineness  of  the  signature  of  M.  A., 
the  subscribing  witness  to  said  instrument.  The  said  A.  L.  was 
sworn  by  me  in  the  manner  and  form  required  by  law  and  the 
substance  of  his  testimony  was  as  follows :  That  he  personally 
knew  S.  S.,  the  grantor,  and  M.  A.,  the  subscribing  witness,  and 
also  the  grontor  in  said  instrument  named  at  the  time  said  instru- 
ment was  executed,  to  wit,  at  the  city  and  county  of  San  Fran- 
cisco on  the  3d  day  of  June  in  the  year  ipo2;  that  since  the  ex- 
ecution of  said  instrument  both  the  grantor  and  grantee  have  be- 
come nonresidents  of  the  state  of  California,  to  wit,  they  reside 
in  the  city  of  Rome,  in  the  Kingdom  of  Italy;  that  he  is  well  ac- 
quainted with  the  signature  of  the  grantor  and  the  said  subscrib- 
ing witness,  and  the  signature  of  the  grantor  and  the  signature 
of  the  subscribing  witness,  and  the  signature  of  said  grantor  to 
the  said  instrument,  and  also  the  signature  of  the  subscribing  wit- 
ness are  genuine.  That  he,  said  A.  L.,  is  a  resident  of  Sausalito, 
county  of  Marin,  state  of  California,  and  that  he  subscribed  his 
name  to  said  instrument  as  a  witness  to  the  genuineness  of  said 
grantor  and  said  subscribing  witness,  respectively. 

NOTE. — California,   C.   C,   sec.    1198. 


Acknowledgment  and  Proof  of  Instrument.  33 

No.  23. — Proof  of  Execution  of  an  Instrument  When  the  Place 
of  the  Residence  of  the  Parties  is  Unknown. 

[The  same  as  in  No.  21  down  to  and  including  the  words,  "Af- 
ter being  sworn,  the  said  A.  B.  testified  in  substance:"]  That  he 
personally  knew  D.  B.,  the  grantor,  and  the  subscribing  witness, 
G.  H.,  at  the  date  of  said  instrument ;  that  the  place  of  residence 
of  the  parties  and  all  the  subscribing  witnesses  to  said  instrument 
is  unknown  to  the  said  A.  B.;  that  he,  the  said  A.  B.,  is  the 
grantee  named  in  said  instrument ;  that  said  instrument  was  never 
acknowledged,  and  he  desires  to  have  it  proved  so  that  it  may 
be  recorded  ;  and  he  has  exercised  due  diligence  to  ascertain  the 
residences  of  the  parties  and  the  subscribing  witnesses  by  makuig 
inquiry  at  their  last  known  places  of  residence,  by  advertising  in 
three  daily  papers  published  at  their  last  knoimi  residences  for 
one  week,  and  by  personal  inquiry  among  their  friends,  family  and 
acquaintances;  and  he  cannot  ascertain  the  place  of  residence  of 
all  or  any  of  said  parties." 

Acknowledgments — Alaska  Territory. — In  Alaska,  deeds 
must  be  executed  in  the  presence  of  two  subscribing  witnesses.  It 
may  be  acknowledged  before  any  officer  authorized  to  take  ac- 
knowledgments in  any  state  or  territory  of  the  United  States, 
and  according  to  the  laws  of  such  places.  When  a  married 
woman  residing  in  Alaska  joins  her  husband  in  executing  a  deed, 
she  must  acknowledge  that  she  executed  the  deed  freely  and  vol- 
untarily. 

NOTE. — Alaska,  Codes,  pt.  5,  c.  11,  sees.  73-118.  Therefore,  as  to  in- 
struments executed  in  any  other  state  or  territory,  they  may  be  acknowl- 
edged (not  proved)  the  same  as  in  California;  but  if  the  instrument 
is  executed  by  a  husband  and  wife,  the  words  "freely  and  voluntarily" 
must  be   added  to   the  California  form. 

Acknowledgments — ^Arizona  Territory. — A  married  woman 
of  the  age  of  seventeen,  or  above,  may  execute  a  deed  of  her  sep- 
arate property  without  being  joined  by  her  husband ;  and  when 
she  is  required  by  law  to  join  with  her  husband  in  a  conveyance, 
she  need  not  be  examined  separate  and  apart  from  him.  Ac- 
knowledgments taken  elsewhere  must  conform  to  the  laws  of  the 
territory. 

NOTE. — Arizona,  C.  C,  pars.  721-746.  Therefore,  all  California  forms 
are  applicable  to  Arizona  by  inserting  the  words:  "He  or  she."  "Exe- 
cuted   the    same    for    the    purpose    and    ccnu^idcyation    therein    expressed." 

No.  24. — General  Form — Arizona. 

Territory  of  Arizona, 
County  of  Maricopa, — ss. 

Before  me,  A.  B.,  a  notar}^  public,  in  and  for  tlie  county  of 
Maricopa,  territory  of  Arizona,  on  this  day,  personally  appeared 
New  Forms — 3 


34  New  Book  of  Forms. 

C.  D.,  known  to  me  to  be  the  person  whose  name  is  subscribed  to 
the  foregoing  instrument  and  acknowledged  to  me  that  he  exe- 
cuted the  same  for  the  purpose  and  consideration  therein  ex- 
pressed. 

Given  under  my  hand  and  seal  of  office  this  jJ  day  of  Jan.,  A. 

D.  i^oy. 

My  commission  expires  the  jc?  day  of  June,  A.  D.  7po5. 
NOTE.— Arizona,   C.  C,  pars.   721-746. 

Acknowledgments — Colorado. — The  person  acknowledging 
must  be  personally  known  to  the  officer  to  be  the  identical  person 
he  represents  himself  to  be,  or  shall  be  proved  to  be  such  by  at 
least  one  credible  person  known  to  the  officer ;  but  it  is  not  neces- 
sary to  state  such  fact  in  his  certificate  except  when  it  is  intended 
to  convey  or  mortgage  a  homestead.  In  such  case  the  acknowl- 
edgment shall  contain  the  additional  words  required  by  law.  As 
to  instruments  executed  in  a  foreign  country,  they  may  be  ac- 
knowledged in  the  form  used  in  such  country.  Ordinarily,  the 
word  "foreign"  followed  by  state  or  place  would  mean  the  United 
States,  but  the  word  "country"  following  "foreign"  and  the 
phrasing  of  the  statute  clearly  means  not  in  the  United  States. 

NOTE. — Colorado,  Mill's  Stats.,  sees.  443-450.  Therefore,  all  Califor- 
nia forms  except  a  married  woman's,  when  a  homestead  is  involved,  are 
applicable  to  Colorado  except  the  words  "to  be  her  act  and  deed  for 
the  uses  specified  therein." 

No.  25. — General  Form — Colorado. 

State  of  Colorado, 

County  of  Washington, — ss. 

A.  B.  appeared  before  me  this  jrf  day  of  June,  ipo6,  in  person 
and  acknowledged  the  foregoing  instrument  to  be  his  act  and 
deed  for  the  uses  specified  therein.  [After  the  notary's  signature 
must  come  the  date  of  the  expiration  of  his  commission.] 

NOTE.— Oolorado,  Mill's  Stats.,  sec.  443.  See  "Seal  of  Notary," 
post. 

No.  26— Married  Woman — Homestead  Involved. 

State  of  Colorado, 
County  of  Arapahoe, — ss. 

On  this  first  day  of  June,  A.  D.  iQoy,  before  me,  E.  B.,  a  notary 
public  in  and  for  the  county  of  Arapahoe,  state  of  Colorado,  per- 
sonally appeared  R.  S.,  wife  of  /.  S.,  known  to  me  to  be  the  per- 
son whose  name  is  subscribed  to  the  within  instrument,  described 
as  a  married  woman ;  and  upon  examination  by  me  privately  and 
apart  from  her  husband,  signed  said  instrument,  after  having  the 
same  by  me  fully  explained  to  her,  and  after  fully  apprising  her 


Acknowledgment  and  Proof  of  Instrument.  35 

of  her  rights  and  the  effect  of  signing  said  instrument,  she,  the 
said  R.  S.,  acknowledged  said  instrument  to  be  her  act  and  deed, 
and  declared  that  she  had  willingly  signed  the  same  for  the  pur- 
poses and  consideration  therein  expressed,  and  that  she  did  not 
wish  to  retract  it. 

NOTE.— Mill's   Stats.,  sec.   2137. 


No.    27. — Chattel   Mortgage. 

State  of  Colorado, 

County  of    Washington, — ss. 

This  mortgage  was  acknowledged  by  A.  B.,  this  jrf  day  of 
June,  A,  D.  190/. 

NOTE.— Mill's  stats.,  sec.  386. 

No.  28. — Proof  of  the  Execution  of  an  Instrument  by  Subscrib- 
ing Witness — Colorado  (Acknowledgment  to  Witness). 

[The  same  as  in  preceding  forms,  down  to  and  inchiduig  the 
matter  contained  in  the  first  brackets,  then  continue :]  "That  said 
subscribing  witness  was  then  lawfully  sworn  and  examined  by 
me,-  and  his  testimony  was  by  me  then  and  there  reduced  to 
writing,  and  was  by  said  subscribing  witness  subscribed  in  my 
presence,  and  it  appears  from  said  testimony  that  said  subscrib- 
ing witness  did  not  see  the  said  A.  L.  sign,  seal  and  deliver  said 
instrument  to  M.  M.,  but  the  said  A.  L.  showed  said  instrument 
to  said  subscribing  witness  and  said  that  he  signed  and  sealed 
it  and  that  it  was  his  free  and  voluntary  act  and  deed,  and  that 
said  witness  subscribed  said  instrument  in  attestation  thereof  in 
the  presence  and  with  the  consent  of  the  person  executing  the 
^^ame,  to  wit,  the  said  L.  M. 

NOTE.— Colorado,    Mill's    Stats.,    sec.    444. 

No.  29. — Proof  of  Execution  of  Instrument  by  Subscribing 
Witness — Colorado  (Witness  Proved  to  be  a  Subscribing 
Witness). 

On  this  jrf  day  of  June,  A.  D.  iqoq,  before  me,  A.  B.,  a  notary 
public  in  and  for  the  county  of  Delta,  state  of  Colorado,  person- 
ally appeared,  C.  D.,  who  has  proved  to  me  by  the  testimony  of 
B,  F.  to  be  a  subscribing  witness  to  the  instrument  to  which  this 
certificate  is  attached.  [Describe  the  instrument  by  dates  and 
parties,  and  state,  briefly,  to  what  it  relates  and  conclude  as  in 
preceding  form.] 

NOTE.— Colorado,  Mill's   Stats.,  sec.  444. 


^6  New  Book  of  Forms, 

No.  30. — Proof  of  the  Execution  of  Instrument  by  Subscribing 
Witness  (Witness  Klnown  to  Officer). 

State  of  Colorado, 
County  of  Delta, — ss. 

On  this  jrf  day  of  June,  A.  D.  tqoS,  before  me,  A.  B.,  a  notary 
public,  in  and  for  the  county  oi  Delta,  state  of  Colorado,  person- 
ally appeared  C.  D.,  personally  known  to  me  to  be  a  subscribing 
witness  to  the  instrument  to  which  this  certificate  is  attached,  to 
wit :  [Describe  the  instrument  by  dates  and  parties  and  state 
hricUy  to  wlwt  it  relates.]  That  said  subscribing  witness  was 
lawfully  sworn  and  examined  by  me,  and  his  testimony  was,  by 
me,  then  and  there  reduced  to  writing,  and  was  by  said  sub- 
scribing witness  subscribed  in  my  presence,  and  it  appears  from 
said  testimony  that  said  subscribing  witness  saw  the  person 
whose  name  is  subscribed  to  said  instrument,  to  wit,  A.  L.,  sign, 
seal  and  deliver  the  same  to  M.  M.,  and  said  witness  subscribed 
the  said  instrument  in  attestation  thereof,  in  the  presence  and 
with  the  consent  of  the  person  so  executing  the  same,  to  wit,  the 
said  A.  L. 

(My  commission  expires  on  the  jrf  day  of  May,  iQoy.) 
NOTR— Colorado,  Mill's  Stats.,  sec  444. 

No.  31. — Acknowledgments — Form — Idaho. 

[All  the  California  forms,  except  as  to  married  women,  are 
applicable,  and  all  other  forms  in  other  places  applicable  to  Cali- 
fornia and  appropriate  in  Idaho.*] 

No.  32. — Married  Women, 

State  of  Idaho, 
County  of  Custer, — ss. 

On  this  ^rst  day  of  June,  in  the  year  of  190"/,  before  me,  £.  B., 
a  notary  public  in  and  for  the  county  of  Custer,  state  of  Idaho, 
personally  appeared  R.  S.,  wife  of  /.  S.,  known  to  me  (or  proved 
to  me  on  the  oath  of  E.  P.),  to  be  the  person  whose  name  is  sub- 
scribed to  the  within  instrument,  described  as  a  married  woman; 
and"  upon  an  examination  without  the  hearing  of  her  husband ; 
I  made  her  acquainted  with  the  contents  of  the  instrument,  and 
she  acknowledged  to  me  that  she  executed  the  same,  and  that 
she  does  not  wish  to    retract  such  execution. 

Acknowledgments — Montana — General  Form. — In  Montana 
all  acknowledgments  are  the  same  as  in  California,  and  when 
taken  out  of  the  state  must  conform  to  the  laws  of  Montana  (Cal- 
ifornia). 

NOTE.— Montana,  C.  C,  sees.   1600-1627. 


*When  taken  cat  of  the  state  they  must  conform  to  the  lawa  of  Idaho 
ajid  California:   Idaho,  C.  C,  sees.  2419-2445. 


Acknowledgment  and  Proof  of  Instrument.  37 

Acknowledgments — Nevada. — In  case  the  grantor  is  a  non- 
resident of  the  state  of  Nevada,  acknowledgments  may  be  exe- 
cuted accor(hng  to  the  laws  of  the  state  or  territory  where  the 
grantor  resides :  Comp.  Laws,  sec.  2662.  It  would  seem  from 
section  2662  that  a  resident  of  the  state  of  Nevada  temporarily 
out  of  the  state  must  conform  in  his  acknowledgment  to  the  laws 
of  his  state.  In  that  respect,  Nevada  differs  from  California,  and 
also  as  to  the  acknowledgments  of  married  women.  In  all  other 
respects  by  adding  to  the  California  form  the  words  "executed 
the  same,"  the  words  "freely  and  voluntarily  and  for  the  uses  and 
purposes  therein  mentioned,"  all  the  California  forms  in  Nevada 
are  applicable,  but  if  executed  in  California,  except  as  to  married 
women,  are  applicable  in  Nevada. 

No.  33. — General  Form — Nevada. 

State  of  Nevada, 
County  of  Story, — ss. 

On  this  ^d  day  of  June,  A.  D.,  one  thousand  nine  hundred  and 
seven,  personally  appeared  before  me  /.  L.,  a  notary  public  in 
and  for  the  said  county,  A.  B.,  known  to  me  to  be  the  same 
person  described  in  and  who  executed  the  foregoing  instrument, 
who  acknowledged  to  me  that  he  executed  the  same,  freelv  and 
voluntarily,  and  for  the  uses  and  purposes  therein  mentioned. 

NOTE, — Nevada,  Comp.  Laws,  sec.   2647. 

When  the  grantor  is  unknown  to  the  officer,  the  following 
form  must  be  used : 

No.  34. — Proof  of  Instruments. 

[The  same  as  Form  No.  33,  down  to  and  including  the  letters 
"A.  B.,"  following  "county";  then  say:]  "Satisfactorily  proved 
to  me  to  be  the  person  described  in  and  who  executed  the  with- 
in conveyance,  by  the  oath  of  C.  D.,  a  competent  and  cred- 
ible witness,  for  that  purpose  by  me  duly  sworn,  and  he,  the 
said  A.  B.,  acknowledged  that  he  executed  the  same  freely  and 
voluntarily,  and  for  the  uses  and  purposes  therein  mentioned." 

NOTE. — Nevada,  Comp.  Laws,  sec.  2648. 

No.  35. — Married  Woman. 

[When  a  grantor  is  a  married  woman,  the  following  form 
must  be  used — the  same  as  in  the  preceding  forms  down  to 
and  including  the  words  "county  of':]  "Personally  appeared 
A.  B.  and  his  wife,  L.  B.,  known  to  me  to  be  the  persons  described 
in  and  who  executed  the  foregoing  instrument,  who  acknowledged 
to  me  tliat  they  each  exectUed  the  same  freely  and  voluntarily. 


38  New  Book  of  Forms. 

and  for  the  uses  and  purposes  therein  mentioned,  and  the  said 
L.  B.  was  by  me  made  acquainted  with  the  contents  of  said  con- 
veyance, and  she  acknowledged  to  me  on  an  examination,  apart 
from  and  without  the  hearing  of  her  husband,  that  she  executed 
the  same  freely  and  voluntarily,  without  fear  or  compulsion,  or 
undue  influence  of  her  said  husband,  and  that  she  does  not 
wish  to  retract  the  execution  of  the  same. 
NOTE.— Nevada,   Comp.   Laws,  sees.   2661,  2662. 

No.  36. — By  Subscribing  Witness. 

State  of  Nevada, 
County  of  Story, — ss. 

On  this  ^d  day  of  June,  igo6,  before  me,  A.  L.,  a  notary  pub- 
he  in  and  for  the  county  of  Story,  personally  appeared  C.  D., 
and  personally  known  to  me  to  be  the  person  whose  name  is 
subscribed  to  the  annexed  instrument  as  a  subscribing  witness 
thereto.  That  said  witness  was  sworn  by  me  to  tell  the  truth 
and  nothing  but  the  truth  about  the  execution  by  0.  M.,  of 
the  said  instrument.  That  said  witness  testified  that  he  saw  0. 
M.  sign  his  name  as  grantor  to  said  conveyance  at  City  of  Car- 
son, State  of  Nevada,  on  the  2d  day  of  April,  A.  D.  /pod,  and 
the  said  O.  M.  requested  him  to  sign  his  name  as  a  witness  to 
said  execution,  and  he,  said  witness,  then  and  there,  subscribed 
his  name  as  such  witness  in  the  presence  of  the  said  grantor,  and 
he  personally  testified  that  he  knew  said  grantor  to  be  the  per- 
son described  in  and  who  executed  the  said  instrument,  and 
that  he,  said  grantor,  said  to  him  (said  witness)  that  he  executed 
the  said  instrument  freely  and  voluntarily  and  for  the  uses  and 
purposes  therein  mentioned. 

NOTE.— Comp.   Laws,   sees.   2650-2652. 

Acknowledgments — New  Mexico. — The  general  form  is  the 
same  as  in  California,  except  the  one  who  makes  it  must  be  "per- 
sonally known"  and  he  executes  it  "as  his  free  act  and  deed." 
The  same  words  are  necessary  under  a  power  of  attorney.  There- 
fore, with  those  changes  all  California  forms  are  applicable  except 
■when  executed  by  a  corporation,  or  association,  or  married 
woman.  Acknowledgments  executed  out  of  the  territory  must 
be  the  same  as  in  the  following  forms.  A  married  woman  who 
unites  in  an  instrument  with  her  husband  and  acknowledges 
the  instrument  must  be  described  in  it  as  his  wife,  but  in  all 
other  respects  it  is  the  same  as  if  she  were  sole.  A  release  of 
dower  is  not  necessary.  A  married  woman  may  give  a  power  of 
attorney,  "but  she  may  make,  acknowledge  and  sign  a  deed 
through  an  attorney." 

NOTE. — Comp.  Laws,  sees.  3931-3951. 


Acknowledgment  and  Proof  of  Instrument.  39 

No.  37. — General  Form. 

Territory  of  New  Mexico, 
County  of  Colfax, — ss. 

On  this  jd  day  of  June,  i(X)6,  before  me  personally  appeared 
A.  B.,  to  me  known  to  be  the  person  described  in  and  who  exe- 
cuted the  foregoinc:  instrument,  and  acknowledged  that  he  exe- 
cuted the  same  as  his  free  act  and  deed. 

NOTE. — New   Mexico,   Comp.   Laws,   sec.    3944. 

No.  38. — By  Attorney  in  Fact. 

Territory  of  New  Mexico, 
County  of  Colfax, — ss. 

On  this  jrf  day  of  June,  logd,  before  me  personally  appeared 
A.  B.,  to  me  known  to  be  the  person  who  exeaited  the  fore- 
g-oing  instrument  in  behalf  of  C.  D.,  and  acknowledged  that  he 
executed  the  same  as  the  free  act  and  deed  of  C.  D. 

NOTE, — New  Mexico,   (Domp.   Laws,  see.   3945. 

No.  39. — 3y  Corporation  or  Association. 

Territory  of  New  Mexico, 
County  of  Colfax, — ss. 

On  this  jrf  day  of  June,  i8g7,  before  me  appeared  A.  B.,  to  me 
personally  known,  who,  being  by  me  duly  sworn,  did  say  that 
he  was  the  president  [or  other  officer  or  agent  of  the  corporation 
or  association'\  of  [describing  the  corporation  or  association],  and 
that  the  seal  affixed  to  said  instrument  is  the  corporate  seal  of  said 
corporation  [or  association],  and  that  said  instrument  was  signed 
and  sealed  in  behalf  of  said  corporation  [or  association],  by  au- 
thority of  its  board  of  directors,  or  trustees,  and  said  A.  B.  ac- 
knowledged said  instrument  to  be  the  free  act  and  deed  of  said 
corporation  [or  association]. 

NOTE. — New  Mexico,   Comp.  Laws,  sec.  3945.' 

Acknowledgments — North  Dakota. — All  the  forms  are  the 
same  as  in  California.  Acknowledgments  taken  out  of  tlie  state 
must  conform  to  North  Dakota  forms. 

NOTE.— North  Dakota,   C.  C,  sees.   3563-3593. 

No.  40. — By  Justice  of  the   Peace — Oregon — General. 
The  only   statutory   forms  are  those  expressly   directed   to  be 
used  by  justices  of  the  peace.     The  idea  appears  to  be  that  a 


40  Ne;w  Book  of  Forms. 

form  prescribed  for  a  justice  of  the  peace  must  necessarily  be 
sufficient  when  used  by  all  officers  exercising  the  same  powers. 

State  of  Oregon, 

County  of  Cla-ckamas, — ss. 

Before  the  undersigned,  a  justice  of  the  peace  for  the  precinct 

of ,  in  the  county  and  state  aforesaid,  personally  appeared 

the  within  [or  above]  named  A.  B.  and  C.  D.,  his  wife*  to  me 
known  to  be  the  individuals  described  in  and  who  executed  the 
within  [or  above]  conveyance  [or  power  of  attorney,  as  the  case 
may  be] ,  and  the  said  A.  B.  acknowledged  that  he  executed  the 
same,  and  the  said  C.  D.,  being  by  me  examined,  separate  and 
apart  from  her  said  husband,  then  and  there  acknowledged  that 
she  executed  such  conveyance  freely,  and  without  fear  and  com- 
pulsion from  anyone;  this day  of ,  19 . 

E.  F.,  Justice  of  the  Peace,t 

NOTE. — Oregon,  Codes  and  Statutes,  vol.  2,  p.  787. 

No.  41. — By  Justice  of  the  Peace — Attorney  in  Fact. 

State  of  Oregon, 

County  of  Clackamas, — ss. 

Before  the  undersigned,  a  justice  of  the  peace  for  the  precinct 

of ,  in  the  county  and  state  aforesaid,  appeared  the  within 

[or  above]  named  [here  insert  the  name  of  the  principal  in  the 
conveyance],  by  his  attorney  in  fact,  within  [or  above]  named 
C.  D.,  to  me  known  to  be  the  individual  described  in  and  who  ex- 
ecuted the  within  [or  above]  conveyance  for  and  on  behalf  of  the 
said  [insert  the  name  of  the  principal],  and  acknowledged  to  me 

that  he  executed  the  same,  this day  of ,  19 . 

E.  F.,  Justice  of  the  Peace. 

NOTE.— Oregon   Codes   and   Statutes,   vol.   1,   p.   788. 

Acknowledgments — South  Dakota. — All  the  forms  are  the 
same  as  in  California.  They  must  contain  the  following:  "To  be 
the  person  described  in  and  who  executed  the  within  instrument." 
In  the  acknowledgment  by  an  attorney  in  fact  the  words  are: 
"Who  is  described  in,  and  whose  name  is  subscribed." 

NOTE. — South  Dakota,  C.  C,  sees.   970-98.5. 


*In  this  form  the  wife  seems  to  be  permitted  to  retain  her  maiden 
name. 

fThis  form  has  this  statutory  note:  "N.  B. — The  form  of  acknowledg- 
ment by  a  single  person  is  the  same  as  the  above,  omitting  the  words 
'relating  to  the  wife'  " — doubtless  to  avoid  confusion  of  mind  on  the 
part  of  inexperienced  justices.  This  and  the  next  following  are  the 
only  statutory  forms  of  acknowledgment  in  Oregon. 


Acknowledgment  and  Proof  of  Instrument.  41 

Acknowledgments — Utah. — They  are  the  same  as  in  Cali- 
fornia, except  as  herein  given.  When  made  out  of  the  state  tliey 
must  conform  to  the  laws  of  Utah. 

NOTE.— Utah  Rev.  Stats.,  sees.  1984-1998. 

No.  42. — General  Form. 

State  of  Utah, 
County  of  Jiuib, — ss. 

On  the  jrf  day  of  June,  ipoy,  personally  appeared  before  me, 
A.  B.,  the  signer  of  the  above  instrument,  who  duly  acknowl- 
edged to  me  that  he  executed  the  same. 

NOTE,— Utah  Eev.  Stats.,  sec.  1989. 

No.  43. — Corporation. 

[The  same  as  an  individual,  down  to  and  including  the  letters 
"A.  B." ;  then  continue:]  "Who  being  by  me  duly  sworn  [or  af- 
tirmed],  did  say  that  he  is  the  president  [or  other  officer  or  agent, 
as  the  case  may  be]  of  [iiaming  the  corporation],  and  that  said 
instrument  was  signed  in  behalf  of  said  corporation  by  authority 
of  its  by-laws  [or  by  resolution  of  its  board  of  directors,  as  the 
case  may  be],  and  the  said  A.  B.  acknowledged  to  me  that  said 
corporation  executed  the  same." 

NOTE.— Utah  Eev.  Stats.,  sec.   1989. 

No.  44. — By  Witness — Grantor  Unknown  to  Officer. 

[The  same  as  above  to  and  including  the  letters  "A.  B." ;  then 
continue:]  "Satisfactorily  proved  to  me  to  be  the  signer  of  the 
above  instrument  by  the  oath  of  C.  D.,  a  competent  and  credible 
witness  for  that  purpose  by  me  duly  sworn,  and  he,  the  said  A.  B., 
acknowledged  that  he  executed  the  same," 

NOTE.— Utah  Rev.  Stats.,  sec.  1990. 

No.  45. — Proof  of  Execution  of  Instrument. 

[The  same  as  above  to  and  including  the  letters  "A.  B." ;  then 
continue:]  "Personally  known  to  me  [or  satisfactorily  prozed  to 
me  by  the  oath  of  C.  D.,  a  competent  and  reliable  znfness  for  that 
purpose,  by  me  duly  szvorn]  to  be  the  same  person  whose  name  is 
subscribed  to  the  above  instrument  as  a  witness  thereto,  who, 
being  by  me  duly  sworn,  deposes  and  says  that  he  resides  in  S.  L., 
county  of  L.,  and  state  of  Utah;  that  he  was  present  and  saw 
E.  F.,  personally  known  to  him  to  be  the  signer  of  the  above  in- 
strument, as  a  party  thereto,  sign  and  deliver  the  same,  and  heard 


42  New  Book  of  Forms. 

him  acknowledge  that  he  executed  the  same,  and  that  he,  the  de- 
ponent, thereupon  signed  his  name  as  a  subscribing  witness 
thereto,  at  the  request  of  the  said  B.  P. 

NOTE.— Utah,  Rev.  Stats.,  sec.  1994. 

Acknowledgments — Washington. — If  acknowledgments  are 
taken  out  of  the  state,  they  may  be  taken  by  any  ofhcer  authorized 
to  take  them  under  the  laws  of  the  place  where  taken,  but  the  gen- 
eral Washington  form  must  be  substantially  followed :  Ballinger's 
Codes,  sees.  2744,  2745.  And  notaries,  justices  of  the  peace  and 
commissioners  of  deeds  must  add  to  their  certificates  the  date  on 
which  their  term  of  ofiice  expires:  Id.,  sec.  2753.  If  they  are 
taken  in  a  foreign  country,  whatever  form  is  used,  the  certificate 
must  recite  in  substance  that  the  instrument  zuas  acknowledged  by 
the  person  or  persons  zvhose  name  or  names  are  signed  thereto  as 
grantor  or  principal  before  him  as  such  officer,  with  the  date  of 
such  acknozvledgment :  Id.,  sees.  4527,  4531. 

As  to  those  taken  out  of  the  state  to  be  used  in  the  state,  they 
must  be  taken  before  any  officer  who  may  take  acknowledgments 
in  the  state  where  taken,  or  by  a  commissioner  appointed  by  the 
governor  of  Washington :  Id.,  sec.  4527.  There  is  a  general  form 
and  one  for  corporations. 

No.  46. — General  Form — Washington. 

State  of  Washington, 
County  of  Walla  Walla, — ss. 

I  [here  give  the  name  of  officer  and  official  title]  do  hereby 
certify  that  on  this  twentieth  day  of  September,  1904,  personally 
appeared  before  me  [name  of  grantor,  and,  if  acknowledged  by 
wife,  her  name,  then  add  "his  wife"],  to  me  known  to  be  the  in- 
dividual [or  individuals]  described  in  and  who  executed  the  with- 
in instrument,  and  acknowledged  that  he  [or  she,  or  they]  signed 
and  sealed  the  same,  as  his  [or  her,  or  their]  free  and  voluntary 
act  and  deed,  for  the  uses  and  purposes  therein  mentioned. 

NOTE. — Washington,  Ballinger's  Codes,  sec.  4533. 

No.  47. — Corporations, 

State  of  Washington, 
County  of  Wolla  Walla, — ss. 

On  this  jrf  day  of  June,  A.  D.  ipoy,  before  me  personally  ap- 
peared A.  B.,  to  me  known  to  be  the  [president,  vice-president, 
secretary,  treasurer,  or  other  officer  or  agent,  as  the  case  may  be] 
of  the  corporation  that  executed  the  foregoing  instrument,  and 


Acknowledgment  and  Prooe  of  Instrument.         43 

acknowledged  the  said  instrument  to  be  the  free  and  voluntary 
act  and  deed  of  said  corporation  for  the  uses  and  purposes  there- 
in mentioned,  and  on  oath  stated  that  he  was  authorized  to  execute 
said  instrument ;  and  that  the  seal  affixed  is  the  corporate  seal  of 
said  corporation. 

NOTE. — Washington,   Ballinger's   Codes,   sec.   4533a. 

No.    48. — Acknowledgments — Wyoming — General   Fonn. 

State  of  Wyoming, 
County  of  Laramie, — ss. 

I  [here  give  the  name  of  the  officer  and  his  official  title]  do 
hereby  certify  that  [7iame  of  the  grantor,  and  if  acknowledged  by 
a  wife,  her  name,  and  add  "his  wife"]  personally  known  to  me  to 
be  the  same  person  whose  name  is  [or  are]  subscribed  to  the 
foregoing  instrument,  appeared  before  me  this  day  in  person,  and 
acknowledged  that  he  [she  or  they]  signed,  sealed  and  delivered 
said  instrument  as  his  [her  or  their]  free  and  voluntary  act,  for 
the  purposes  therein  set  forth. 

NOTE. — Wyoming,  Rev.  Stats.,  sec.  2752. 

No.  49. — Homestead  Involved. 

[The  same  as  No.  48,  down  to  and  including  the  last  word; 
then  insert  these  words :  "Including  the  release  and  waiver  of  the 
right  of  homesteads."] 

NOTK — Wyoming,  Eev.  Stats.,  sec.  2752. 


ARBITRATION  AND  AWARD. 

What  may  be  Submitted. — Any  controversy  which  may  be 
the  subject  of  a  civil  action,  except  a  question  of  title  to  real  prop- 
erty, may  be  submitted  in  writing  to  arbitration  to  one  or  more 
persons.  Questions  relating  merely  to  the  partition  or  the  bound- 
aries of  real  property  may  be  submitted. 

NOTE.— California,  C.  C.  P.,  sees.  1281,  1282;  Idaho,.  C.  C.  P.,  sees. 
3876-38S0;  Montana,  C.  C,  sees.  2270-2279,  Nevada  Comp.  Laws,  sees. 
3457-3470,  North  Dakota,  C.  C.  P.,  sees.  59S0-59S9,  Utah,  Rev.  Stats.,  sees. 
3221-3231,  and  Washington,  Ballinger's  Codes,  sees.  5102-5108,  the  same 
as  in  California.  Alaska,  nothing.  Colorado,  Mill 's  Stats.,  sec.  2S01a- 
S801q,  provides  for  a  state  board  to  adjust  differences  between  employers 
and  employees.  Montana,  Pol.  Code,  sees.  3330-3338,  the  same  as  in 
Colorado.  New  Mexico,  Comp.  Laws,  sees.  300G-3013;  Arizona,  C.  C, 
pars.  295,  309,  and  Wyoming,  Rev.  Stats.,  sees.  406S-40S0,  are  substanti- 
ally the  same  as  California,  but  fuller.     Oregon,  Codes  and  Statutes,  sees. 


44  New  Book  of  Forms, 

3883-3886,  applies  only  to  fence  rails  removed  by  floods.  South  Dakota, 
C.  C,  sec  2344,  provides  that  an  agreement  to  arbitrate  cannot  be  en- 
forced. 

Submission  to  be  in  Writing. — The  submission  to  arbitra- 
tion must  be  in  writing,  and  may  be  to  one  or  more  persons. 

NOTE, — California,  C.  C.  P.,  sec.  1282.  The  statute  seems  on  its  face 
to  apply  only  to  submissions  which  are  made  an  order  of  court,  under 
section  1283,  Code  of  Civil  Procedure.  The  same  section  provides  that 
a  submission  not  made  on  order  of  court  may  be  revoked  at  any  time 
before  award.  In  the  absence  of  statutes  like  section  1282,  Code  of 
Civil  Procedure,  many  states  uphold  parol  submissions  before  and  after 
award,  and  in  California  the  courts  would  hesitate  to  set  aside  a  parol 
agreement  to  arbitrate  after  submission  and  award.  Such  award  could 
not  be  enforced  by  judgment  and  execution,  but  a  written  award 
would  seem  to  be  sufficient  consideration  for  a  promise  to  pay  an  obliga- 
tion, the  arbitrators  being  the  agents  of  one  of  the  parties  binding  him 
by  a  writing  upon  the  same  principle  that  A  is  bound  by  a  promise  to 
pay  if  at  his  request  B  executes  it  for  him  and  in  his  name. 

Application  of  Statute. — The  New  York  statute  relating  to  arbitration 
controls  all  arbitrations  upon  written  submission,  and  is  not  limited  to 
such  arbitrations  as  provide  for  a  judgment  in  some  court  to  be  entered 
upon  the  award:  Wells  v.  Lane,  15  "Wend.  99;  Bulson  v.  Lohnes,  29  N.  Y. 
291. 

The  statute  does  not  apply  to  the  submission  of  a  suit  pending  in  a 
court   of  law:    Graham   v.   Pence,   6   Rand.    529. 

Comxon-law  Right  to  Arbitrate. — The  provisions  of  the  statutes  on  the 
subject  of  arbitration  do  not  repeal  the  <'ommon  law  in  relation  thereto, 
nor  are  the  parties  prohibited  from  submitting  their  controversies  to 
arbitration  without  the  intervention  of  a  court;  Conger  v.  Dean,  3  Iowa, 
463,  66  Am.  Dec.  93;  Cutler  v.  Cutler,  48  N.  Y.  Sup.  Ct.  470. 

The  statute  is  but  a  reaffirmance  of  the  common  law,  and  gives  the 
parties  no  higher  rights  than  they  might  have  asserted  in  a  court  of 
equity  in  case  of  mistake,  fraud  or  accident:  Peachy  v.  Ritchey,  4  Cal. 
205. 

It  is  only  where  parties  desire  judgment  of  the  court  and  execution 
upon  the  award  that  they  must  pursue  the  statute  form:  Conger  v.  Dean, 
3  Iowa,  4G3,   66   Am.   Dec.  93. 

The  common-law  rule  was  that  any  matter  might  be  submitted  to 
arbitration  by  parol  agreement  unless  the  arbitration  attempt  to  devest 
the  parties  of  some  right  or  title  to  property  that  could  pass  only  by 
written  agreement,  and  that  rule  has  not  been  changed  by  the  statutes: 
Thomasson  v.  Rish,  74  Ky.  619. 

Compulsory  Arbitration. — A  constitutional  right  to  have  controversies 
determined  by  the  courts  cannot  be  limited  or  taken  away  by  statutes 
and  submitted  to  arbitration  without  the  consent  of  all  the  parties  to 
the  dispute:  St.  Louis  etc.  Ry.  Co.  v.  Williams,  49  Ark.  492,  5  S.  W.  883. 
The  Colorado  constitution  directs  the  legislature  to  "pass  such  laws  as 
may  be  necessary  and  proper  to  decide  differences  by  arbitrators,  to 
be  appointed  by  mutual  agreement  of  the  parties  to  any  controversy 
who  may  choose  that  mode  of  adjustment,"  and  neither  contemplates 
nor  admits  of  a  law  providing  for  a  compulsory  submission  to  arbitra- 
tion: In  re  Bill  Relating  to  Arbitration,  9  Cal.  629. 

The  supreme  court  of  Ohio  has  said  that  because  a  statute  says  that 
when  railroads  are  in  process  of  consolidation  if  a  stockholder  re- 
fuses to  convert  his  stock  into  that  of  the  consolidated  company  (if 
he  and  the  board  of  directors  cannot  agree  as  to  the  value),  "the  par- 


AuniTRATION    AND    AwARD,  45 

ties  mtty  submit  the  matter  to  arbitration,"  the  statute  does  not  re- 
gmre  the  submuision  to  be  by  the  agreement  of  both  parties:  Pittsburg 
etc.   Ry.    Co.    v.    Garrett,   50   Ohio   St.   405,   34   N.    E.   493. 

Jurisdiction. — If  tlie  matter  involved  does  not  amount  to  three  hun- 
dred dollars,  a  8tii)ulation  that  the  submission  may  be  entered  as  an 
order  of  the  superior  court  does  not  {i;ive  that  court  jurisdiction.  In 
such  case  the  attempt  to  confer  jurisdiction  is  surplusage,  and  the 
submission  and  award  cau  only  be  enforced  by  action  based  upon  the 
award;  and  if  the  submission  does  not  provide  that  it  may  be  entered 
as  an  order  of  the  8ui)erior  court,  the  award  is  nothing  more  than  a 
strong  resemblance  to  a  common-law  submission. 

If,  within  a  court's  jurisdiction,  a  submission  is  made  an  order  of 
court,  the  award  will  be  enforced  the  same  as  if  it  were  a  judgment, 
but  if  it  is  not  made  an  order  of  court,  it  can  be  enforced  only  by  action 
based  upon  the  award,  and  the  amount  of  the  award  gives  the  court 
jurisdiction  of  the  action.  Tlie  award  in  such  cases  follows  the  general 
rule  and  will  be  of  no  avail  if  it  was  obtained  by  fraud,  or  if  the  pro- 
visions of  the  statute  were   disregarded. 

Limit  of  Jurisdiction. — In  California  the  statute  limits  the  power 
of  the  parties  to  a  stipulation  that  the  submission  may  be  entered  as 
an  order  of  the  superior  court:  Code  Civ.  Proc,  sec.  1283;  which  ex- 
cludes a  justice's  court,  but  the  same  practical  result  may  be  obtained 
by  the  submission  in  the  usual  manner,  and  to  prevent  revocation,  the 
arbitrators  making  the  award  as  soon  as  they  have  agreed.  Such 
promptness  will  usually  preclude  revocation  under  section  1283.  If  the 
award  is  not  satisfied,  the  prevailing  party  may  have  his  action  upon 
it,  and  the  other  party  will,  if  prudent,  satisfy  the  award  before  action 
when  he  ascertains  that  there  is  no  defense  on  the  merits,  the  awiird 
being  founded  upon  a  good  consideration,  to  wit,  the  submission  of  a 
bona  fide  controversy  to  arbitration,  which  is  always  an  agreement  to 
abide  the  legal  result. 

In  Iowa  it  is  held  that  a  judgment  rendered  on  award  by  a  justice 
of  the  peace  within  his  jurisdiction,  as  to  amount  and  by  the  express 
agreement  and  consent  of  the  parties  is  valid:  Van  Horn  v.  Eellar,  20 
Iowa,  255.  In  another  case  it  was  held  that  a  justice  had  authority 
to  enter  judgment  where  the  stipulation  to  submission  provided  that 
judgment  was  to  be  entered  on  the  award,  and  that  the  court  should 
enter  judgment  on   the   award:   Whitis  v.  Culver,   25   Iowa,   30. 

Relating  to  Eeal  Property. — Prior  to  the  passage  of  the  placer  mines 
act  of  1870  it  was  said  that  the  occupant  of  a  mining  claim  holds  a 
freehold  estate  in  the  claim.  "In  effect,"  it  was  said,  "they  are  practi- 
cally freehold  estates,  except  some  doctrine  of  abandonment,  not  per- 
haps applicable  to  such  estates."  Unquestionably  they  are;  we  think 
it  would  not  be  in  harmony  to  deny  them  the  "incidents"  of  freehold 
estate:  Merritt  v.  Judd,  14  Cal.  61.  The  court  omitted  to  suggest  other 
difficulties  in  its  way  of  scheduling  mining  claims  as  freehold  estates, 
such  as  their  passing  by  bills  of  sale,  without  possession;  by  actual 
transfer;  by  possession  without  a  written  contract  of  sale;  their  liability 
to  forfeiture  by  nonusage;  by  being  in  excess  of  the  number  of  square 
yards  allowed  under  the  miner's  rules  of  the  district;  by  the  "working 
out"  of  the  gold  contained  in  them;  by  a  "hard  winter"  preventing 
work  in  them;  "by  snow  slides"  covering  them  so  they  could  not  be 
■worked;  "by  the  prevalence  of  floods,"  etc.  In  Hughes  v.  Devlin,  23 
Cal.   501,  Merritt  v.   Judd   is,  for   similar  reason,   affirmed. 

In  Spencer  v.  Winselman,  the  supreme  court  quotes  Merritt  v.  Judd, 
and  Hughes  v.  Devlin,  and  appears  to  approve  them,  as  far  as  they  hold 
that  possessore  of  mining  claims  are  "treated,  as  between  themselves 
and  all  persons  but  the  United  States,  as  the  owners  of  the  land  and 
fhe  mines  therein,"  and  proceed  to  state  the  true  reason  why  the  quea- 


46  New  Book  of  Forinis. 

tion  thev  were  considering  was  not  a  "question  of  title  to  real  property 
in  fee  or  for  life,"  within  section  1281,  Code  of  Civil  Procedure,  viz.: 
"It  is  not  doubted,  it  says,  that  a  party  who  is  the  admitted  owner  of 
a  title  in  fee  to  real  estate  may  contract  to  convey  it  to  another,  and 
that  a  controversy  concerning  the  alleged  performance  or  nonperform- 
ance of  such  contract  may  be  the  subject  of  arbitration  under  the 
statute":  42  Cal.  479. 

Construction  of  Statutes  Relating  to  Arbitration. — Statutory  provi- 
sions relating  to  arbitration  are  to  be  liberally  construed:  Tuskaloosa 
Bridge  Co.  v.  Jemison,  38  Ala.  476;   Owens  v.  Wither,  3  Tex.   161. 

The  statute  of  Montana,  sections  459-468,  relating  to  submission  to 
arbitration,  are  similar  to  the  California  statute.  It  is  held  that  the 
provisions  relating  to  vacating  awards  upon  the  statutory  grounds  do 
not  apply  to  a  submission  which  has  not  been  made  an  order  of 
court:  Hartford  Fire  Ins.  Co.  v.  Bonner  Mercantile  Co.,  44  Fed.  151,  11 
L,  E.  A.  623. 

A  statute  which  empowers  justices  of  the  peace  to  make  rules  of 
reference  and  render  judgment  on  reports  in  submission  when  the  con- 
troversy is  under  two  hundred  dollars  in  amount,  is  not  repugnant  to 
the  constitution  of  the  state  which  limits  the  jurisdiction  of  justices 
of  the  peace  in  civil  cases:  Hayes  v.  Bennett,  2  N.  H.  422. 

A  referee  appointed  by  the  parties  in  a  suit  at  law  or  equity  under 
the  statutes  of  the  state  possesses  the  same  authority  as  an  arbitrator 
at  common  law,  modified  by  the  provisions  of  the  statute:  59  N.  H.  219. 

An  agreement  to  purchase  anything  at  a  valuation  determined  by  a 
third  person  is  not  a  submission  to  arbitration:  California  M.  E.  Church 
V.  Seitz,  74  Cal.  287,  15  Pac.  839.  A  stipulation  to  refer  a  pending  case 
to  referee  is  not:  Gunter  v.  Sanches,  1  Cal.  45. 

It  is  a  general  rule  that  if  a  claimant  for  benefits  from  societies 
presents  his  proofs  to  it  at  a  hearing  before  a  committee  in  whose 
selection  the  claimant  had  no  choice,  such  submission  does  not  convert 
the  hearing  into  an  arbitration,  even  if  the  committee  is  called  a  board 
of  arbitration:  Grimbley  v.  Harrold,  125  Cal.  24,  73  Am.  St.  Rep.  19, 
57  Pac.  558. 

A  submission  of  a  pending  action  to  arbitration  operates  as  a  dis- 
continuance of  the  action,  and  the  court  has  no  longer  jurisdiction  of 
it:  Draghicevich  v.  Valicevich,  76  Cal.  378,  18  Pac.  406. 

Illegal  Contracts. — An  award  on  an  illegal  contract  is  void:  Hall  v. 
Kimmer,  61  Mich.  269,  1  Am.  St.  Bep.  575,  28  N.  W.  96.  And  contro- 
versy growing  out  of  a  "gaming"  consideration  will  be  set  aside: 
Haley  V.  Long,  7  Tenn.  93. 

Statute  of  Iilnutations. — If  a  claim  barred  by  limitations  of  time  is 
submitted,  the  award  will  be  upheld:  Boynton  v.  Butterfield,  88  Mass. 
67. 

If  the  parties  had  no  control  of  the  matter  submitted,  the  arbitration 
is  void:  Watertown  v.  Waterbury,  1  Root,  212.  If  one  of  the  parties 
had  no  right  to  a  large  part  of  the  matter  submitted,  the  award  will 
not  be  upheld:  Payne  v.  Moore,  5  Ky.  163,  4  Am.  Dec.  689. 

The  authority  of  those  who  submit  a  matter  to  arbitration  must  ap- 
pear in  the  proceedings:  Eastman  v.  Burleigh,  2  N.  H.  484. 

No.  50. — Agreement  to  Arbitrate  by  Partners.* 

This  submission,  made  and  entered  into  this  ^oth  day  of  May, 
1906,  by  and  between  R.  B.  C.  and  D.  B.  L.,  witnesseth: 


*This  form  was  held  to  be  good  in  the  case  of  Cassley  v.  Lindsay,  14 
Cal.  390. 


ARniTRATION    AND    AwARD.  47 

Whereas,  the  said  parties,  on  or  al)out  the  Qth  of  September, 
ipo^,  made,  and  entered  into  a  copartnership,  at  the  City  of  Los 
Angeles,  which  has  continued  up  to  the  present  time,  being  de- 
sirous of  dissolvinij:  said  partnership,  are  unable  to  agree  upon 
the  settlement  of  the  accounts  thereof,  and  concerning  the  pro- 
portions and  shares,  which  now  belong  to  each  party  therein : 

Now,  therefore,  in  consideration  of  the  premises,  and  to  avoid 
recourse  to  a  suit  in  the  courts,  the  parties  have  agreed  to  mutu- 
ally submit,  annd  hereby  do  submit,  and  refer  the  whole  matter 
of  the  settlement  and  adjustment  of  said  partnership,  as  between 
the  parties,  to  M.  M.,  Esq.  And  do  mutually  covenant  and 
agree,  each  to  and  with  the  other,  to  observe  and  abide  by  the  de- 
cision and  award  of  such  arbitrator;  and  we  further  agree  that 
the  award  and  decision  of  said  arbitrator  shall  be  made  an  order 
of  the  [superior  court]  [county,  or  city  and  coimty  of],  and  such 
award  shall  be  made  within  twenty  days  from  the  date  hereof. 
[Signed  by  both  parties.]* 

Submission — "Order  of  Court"  —  Clerk's  Entry  —  Revocation  —  Com- 
pelling Arbitrators  to  Make  A-ward. — It  may  be  stipulated  in  the  sub- 
mission that  it  be  entered  as  an  order  of  the  superior  court;  if  so  stipu- 
lated, it  must  be  filed  with  the  clerk  of  the  county  where  the  parties, 
or  one  of  them,  reside.  The  clerk  then  enters  in  his  register  of  actions 
a  note  of  the  submission,  with  the  names  of  the  parties  and  arbitrators, 
the  date  of  the  submission,  when  filed,  and  the  time  limited  by  the 
submission,  if  any,  within  which  the  award  must  be  made.  When  en- 
tered, the  submission  cnnnot  be  revoked  without  the  consent  ot  both 
parties.  The  arbitrators  m.ay  be  comiielled  by  the  court  to  make  an 
award,  and  the  award  may  be  enforced  by  the  court  in  the  same  man- 
ner as  a  judgment.  If  the  submission  is  not  made  an  order  of  the  court, 
it  mny  be  revoked  at  any  time  before  award:  C.  C.  P.,  sec.  1283. 
'  Stipulation  to  Abide  by  Award. — Such  agreement  is  not  necessary; 
the  law  implies  an  agreement  to  abide  by  the  award:  Robinson  v.  Tem- 
plar Lodge,  97  Cal.  62,  31  Pac.  609. 

Appeal. — A  stipulation  in  the  submission  that  neither  party  should 
appeal  is  void:  Muldrow  v.  Norris,  2  Cal.  74,  56  Am.  Dec.  313. 

General  Stipulation  to  Arbitrate. — A  general  agreement  to  refer  a 
case  to  arbitration  will  not  be  regarded;  but  if  the  agreement  is  that 
a  party  to  it  shall  only  pay  the  sum  determined  by  the  arbitrators, 
such  covenant  is  a  condition  precedent  to  an  action:  Holmes  v.  Richet, 
56  Cal.  307,  38  Am.  Rep.  54. 

Provisions  in  Contracts  for  Arbitration  of  Disputes. — If  the  contract 
is  uncertnin  or  indefinite  as  to  the  number  of  arbitrators  and  the  mode 
ot  their  selection,  it  is  too  uncertain  to  be  enforced:  Greiss  v.  State  Ins. 
Co.,  98  Cal.  241,  33  Pac.  193. 


•Section  382  of  the  practice  act  was,  at  the  time  of  the  submission, 
the  same  as  section  12S3  of  the  Code  of  Civil  Procedure,  except  the 
then  practice  act  provided  that  it  might  be  stipidated  that  the  sub- 
mission might  be  entered  as  an  order  of  the  county  or  district  court. 
In  both  the  practice  act  and  the  Code  of  Civil  P*rocednre  it  is  the  sub- 
mission, and  not  the  "award  and  decision,"  that  may  be  entered  as  an 
ord(  r  of  court.  Therefore,  in  using  this  form  it  is  advisable  to  stipulate 
that  the  submission  (which  always  precedes  "award  and  decision") 
may  be  entered  as  an  order  of  the  superior  court. 


48 


New  Book  of  Forms. 


A  stipulation  to  submit  a  matter  to  arbitration  cannot  be  made  ir- 
revocable by  agreement:  Tobey  v.  Bristol  County,  3  Story,  800,  Fed.  Cas., 
No.  14,065. 

If  the  matter  submitted  is  in  issue  in  a  pending  suit  between  the 
parties  it  does  not  take  away  the  character  of  the  submission  as  a  sub- 
mission at  common  law,  and  it  may  be  revoked  at  any  time  before 
award:  Minneapolis  etc.  E.  E.  Co.  v.  Cooper,  .59  Minn.  290,  61  N.  W. 
143;  but  if  the  matter  is  submitted  on  stipulation  to  a  referee,  the 
submission   is  irrevocable:   McGheehen  v.   Duffield,   5   Pa.   St.   497. 

If  counsel  submit  a  client's  case  to  a  reference,  the  client  has  a  right 
to  revoke  the  submission  at  any  time  before  it  is  acted  on:  Coleman  v. 
Gmbb,  23  Pa.  St.  396;  qualified,  probably,  by  a  reservation  that  if  a 
client  instructs  his  counsel  to  submit  his  case  that  he  is  also  estopped. 
And  such  instruction  may  be  implied.  In  one  ease  counsel  wanted  delay, 
and  to  get  it  submitted  to  a  reference,  and,  later,  when  his  client  ob- 
jected it  was  held  that  having  had  the  benefit  of  delay,  he  could  not 
repudiate  the  act  of  his  attorney  and  deny  his  authority:  Williams  v. 
Tracy.  95  Pa.  St.  308. 

A  stipulation  that  all  disputes  that  may  arise  in  the  execution  of  a 
contract  may  be  settled  by  arbitration  does  not  deprive  the  courts  of 
jurisdiction.  The  parties  may  fix  any  mode  they  think  fit  to  liquidate 
damages  in  their  nature  unliquidated,  and  if  they  do  so,  no  recovery 
can  be  had  in  the  courts  until  the  method  agreed  upon  has  been  pur- 
sued, or  a  valid  excuse  exists  for  not  pursuing  it.  By  the  use  of  the 
words  "valid  excuse"  the  court  means  that  "if  such  adjustment,  by 
the  mode  in  the  agreement  stipalated,  or  a  fair  effort  on  the  part  of  the 
injured  to  obtain  it  fails,  no  cause  of  action  arose":  Old  Sausalito  Co. 
v.  Commercial  Assur.  Co.,  66  Cal.  253,  5  Pac.  232. 

Stipulation  by  Partners. — One  partner  has  no  authority  to  submit 
partnership  matters  to  arbitration:  Jones  v.  Bailey,  5  Cal.  345.  But 
the  subject  matter  of  a  partnership  and  the  differences  between  part- 
ners relating  to  the  partnership  may  be,  or  rather  were,  arbitrated: 
Poster  v.  Carr,  135  Cal.  83,  67  Pac.  43. 

The  subject  matter  of  an  action  to  recover  mining  ground  (not  pat- 
ented) cannot  be  submitted:  Spencer  v.  Wenselman,  42  Cal.  479,  cited 
5  Utah,  408,  16  Pac.  404. 

A  power  of  attorney  to  purchase  land  does  not  authorize  the  submis- 
sion to  arbitration  of  the  matter  of  fixing  the  price  to  be  paid  for  the 
land:   Talmadge  v.  Arrowhead  Eeservoir  Co.,  101  Cal.  367,  35  Pac.  1000. 

The  presentation  of  proofs  by  a  beneficiary  to  a  committee  of  a 
benefit  society  is  not  an  arbitration  binding  upon  the  beneficiary: 
Grimbley  v.  Harrold,  125  Cal.  24,  73  Am.  St.  Eep.  19,  57  Pac.  558. 

A  submission  of  matters  to  arbitration  under  an  agreement  which 
clearly  shows  an  intention  of  the  parties  to  ignore  nearly  all  the  pro- 
visions of  the  statute  relating  to  arbitration  and  repudiates  intention 
of  following  its  requirements,  or  of  availing  themselves  of  the  ma- 
chinery of  the  courts  to  arrest  the  arbitrators,  or  to  correct  their  errors, 
is  void  as  a  statutory  submission  to  arbitration,  and  an  award  thereon 
cannot  be  enforced  as  a  judgment:  Kreiss  v.  Hotaling,  96  Cal.  618,  31 
Pac.  740. 

At  common  law  any  matter  in  controversy  might  be  submitted  by  a 
parol  agreement  unless  the  arbitration  attempted  to  devest  the  parties 
of  some  rights  or  title  to  property  that  could  not  pass  by  a  written 
agreement:  Thomasson  v.  Risk,  74  Ky.  619. 

Submission — An  Order  of  Court. — In  some  states  the  words  "rule  of 
court"  are  used  in  similar  statutes.  The  statute  provides  that  when 
the  submission  is  made  and  entered  as  an  order  of  court  it  cannot  be 
revoked  without  the  consent  of  both  parties.  It  does  not  mean  that 
the  submission   is  irrevocable.     In   equity,   practically   all   contracts   are 


Arbitration  and  Award.  49 

revocable,  and  frequently  the  law  will  ^ant  relief  as  well  as  equity. 
By  stipulation,  an  arbitration  proceeding;  may  be  made  an  order  of 
court  under  Code  of  Civil  Procedure,  section  1283.  When  the  submis- 
sion  is  entered  by  the  clerk  it  is  an  order  of  court  and  a  court  may 
grant  relief  from  any  order  or  other  proceeding  taken  through  mis- 
take, inadvertence,  surprise  or  excusable  neglect:  C.  C.  P.,  sec.  473. 
It  may  also  be  set  aside  when  the  validity  of  the  contract  to  submit  to 
arbitration  is  the  fact  in  dispute:  C.  C.  P.,  sec.  1856,  subd.  2. 

"Where  courts  have  terms,  it  has  been  held  that  where  the  submission 
has  been  made  a  rule  of  court  under  a  statute,  if  not  executed  by  the 
next  term  the  court  may  set  aside  the  submission:  Shelby  Iron  Co.  v. 
Cobb,  55  Ala.  636.  In  New  Hampshire  the  court  may  do  it  at  any 
time  for  good  cause  shown:  Dexter  v.  Young,  40  N.  H.  130. 

Rule  of  Court. — In  submissi>n  to  arbitration  by  "rule  of  court,"* 
in  a  suit  pending,  issues  may  be  submitted,  although  they  are  not  in- 
volved in  the  suit  Shriver  v.  State.  9  Gill  &  J.  1.  A  single  item  of  a 
long  account  may  be  submitted:  McBride  v.  Hagan,  1  Wend.  326.  A 
Buit  on  an  administrator's  bond  may  be  arbitrated:  Stout  v.  Common- 
wealth, 2  Rawle,  341.  A  suit  it-  equity  cannot  be  arbitrated:  Taggart 
V.  Fox,  1  Grant  Cas.  190. 

The  Iowa  Code,  the  same  as  the  California,  allowing  all  controver- 
sies which  might  be  the  subject  of  a  civil  action  to  be  arbitrated,  the 
qnestion  whether  a  place  is  not  a  nuisance  may  be  arbitrated:  Richards 
V.  Holt,  61  Iowa,  529,  16  N.  W.  595.  A  claim  against  a  city  for  dam- 
ages may  be:  Osborn  v.  City  of  Fall  River,  140  Mass.  508.  All  cases  of 
injury  to  person  or  property:  State  v.  Nemaha,  7  Kan.  349. 

To  constitute  a  submission  so  as  to  give  the  award  the  effect  of  a 
judgment,  the  statute  must  be  pursued:  Heslip  v.  San  Francisco,  4  Cal. 
1. 

A  submission  is  invalid  if  a  note  of  the  submission  is  not  entered 
by  the  clerk  in  the  register  of  actions:  Kettleman  v.  Treadway,  65  Cal. 
505.  4  Pac.  506. 

The  clerk  of  the  court  must  be  authorized  by  the  stipulation  to  enter 
in  the  register  a  note  of  the  submission,  and  the  entry  must  be  made, 
otherwise  there  is  no  submission:  Pieratt  v.  Kennedy,  43  Cal.  393. 

Umpire. — If  the  submission  empowers  the  arbitrators  to  select  an 
umpire,  they  may  select  him  before  or  after  the  arbitration  investiga- 
tion has  commenced,  even  if  the  written  submission  provides  for  such 
selection  in  the  event  of  a  disagreement  between  the  arbitrators:  Dud- 
ley V.  Thomas,  23  Cal.  365. 

A  building  contract  provided  that  in  case  a  dispute  arose  respecting 
extra  work,  two  arbitrators  should  be  appointed  with  power  to  choose 
an  umpire,  and  the  decision  of  any  two  should  be  final.  A  dispute 
arose,  but  no  request  or  attempt  to  arbitrate  was  made  by  the  plaintiff. 
Held,'  that  plaintiff  was  precluded  from  maintainincr  an  action  for  the 
value  of  extra  work:  Gray  v.  La  Societe  Francaise,  131  Cal.  566,  63  Pac. 
848. 

Will  Contest — Arbitration. — A  will  contest  cannot  be  submitted  to 
arbitration:  Estate  of  Carpenter,  127  Cal.  582.  60  Pac.  1C2.  When  a 
matter  is  referred  to  two  arbitrators,  with  power  to  call  in  a  third,  he 
will  be  considered  an  umpire  between  the  others;  and  an  award  by  two 
in  such  case  will  be  valid:  Hobson  v.  McArthur.  41  Y.  S.  182.  10  L. 
ed.  930.  In  Ranny  v.  Edwards,  it  was  contended  that  an  umpire  was 
a  person  by  whose  sole  award  the  rights  of  the  parties  were  to  be  de- 
termined; but  the  court  held  the  contrary:   17  Conn.  309. 


•"Order  of  court"  as  the  words  are  used  in  a  general  submission   to 
arbitration. 

New  Forms — 4 


50  New  Book  of  Forms. 

When  an  nmpire  is  appointed  and  it  is  provided  in  the  submission 
that  they  may  select  an  umpire,  it  must  appear  on  the  face  of  the  award 
that  the  appointment  of  an  umpire  was  the  concurrent  act  of  both  ar- 
bitrators:  Crisp  V.  Love,  65  N.  C.  126. 

Unless  the  submission  gives  them  power,  arbitrators  have  no  author- 
ity to  call  in  an  umpire:  Mc]\rann  v.  Spinning,  51  Ind.  187,  and  other 
cases.  "When  an  umpire  is  called  in,  the  matter  must  be  re-examined, 
and  an  award  without  it  is  void:  Day  v.  Hammond,  57  N.  Y.  479,  15 
Am.  Rep.  522,  and  many  other  cases. 

No.  51. — Submission  Clause  in  Contract. 

It  is  agreed  that  in  case  of  difference  of  opinion  as  to  the 
amount  of  loss  or  damages,  such  difference  shall  be  submitted  to 
the  arbitrators  of  tzvo  disinterested  and  competent  men,  mutually 
chosen  (who  in  case  of  disagreement  shall  select  a  third),  whose 
award  shall  be  conclusive  and  binding  on  both  parties. 

NOTE. — If  the  damages  are  liquidated  it  is  said  that  a  party  may 
have  his  action  in  spite  of  his  contract,  upon  the  ground  that  a  court's 
jurisdiction  cannot  be  taken  from  it  by  stipulation.  If  the  amount  is 
fixed  in  a  contract  as  a  penalty  for  its  violation,  the  amount  of  damages 
is  said  to  be  liquidated:  See  C.  C,  sec.  1671. 

No.   52. — Submission  Clause  in   Contract. 

If  a  dispute  should  arise  in  reference  to  extra  work,  or  in  re- 
spect to  compensation  for  the  same,  such  disagreement  shall  be 
submitted  to  the  arbitration  of  A.  B.,  C.  D.,  and  E.  P.,  and  such 
submission  shall  be  made  and  entered  as  an  order  of  court. 

No.    53. — Affidavit    that    Arbitrators    have    not    Made    Their 

Award. 

[Title  of  Court  and  Cause.] 

A.  B.,  being  duly  sworn,  says:  That  the  above-entitled  matter 
was  on  May  i,  ipoj,  submitted  to  arbitration ;  and  it  was  stipu- 
lated that  the  submission  be  entered  as  an  order  of  the  said  su- 
perior court,  and  said  submission  was  entered  by  the  county 
clerk  of  said  city  and  county,  in  the  manner  as  is  directed  by  law. 
1  hat  E.  F.,  G.  H.,  and  /.  /.,  were  named  in  said  submission  as  ar- 
bitrators. That  the  time  stipulated  within  which  the  award  must 
be  made  has  passed,  and  award  has  not  been  made.  That  ar- 
bitrators E.  F.  and  G.  H.  have,  from  time  to  time,  met,  but  have 
been  unable  to  agree,  and  cannot  agree  without  the  presence 
of  said  third  arbitrator,  upon  an  award.  That  /.  /.,  the  third  ar- 
bitrator, appeared  at  the  first  meeting  of  the  arbitrators  after  the 
submission,  to  wit,  on  May  2,  ipoj,  and  the  three  arbitrators 
were  jointly  and  severally  sworn  in  the  manner  directed  by  law 
and  unanimously  adjourned  to  meet  again  at  the  same  hour  and 
place  in  said  city  and  county  on  May  4,  igo^,  anrl  pt  th'^  time, 


Akiiitration  and  Award.  51 

place  and  hour  to  which  the  first  meeting  was  adjourned,  affiant, 
C.  D.  and  E.  f.  and  G.  H.  met,  but  the  said  /.  /.  did  not  appear, 
That  on  the  day  following,  to  wit,  on  May  5,  igof,,  affiant  met 
said  /.  J.  and  asked  him  why  he  did  not  attend  at  the  meeting 
on  May  4th  as  agreed  upon.  He  then  said  that  he  had  too  much 
to  do  and  could  not  be  there  without  injury  to  his  business,  and 
he  had  made  up  his  mind  to  have  nothing  more  to  do  with  the 
matter. 

Wherefore,  affiant  respectfully  requests  the  court  to  make  an 
order  commanding  the  said  /.  /.  to  show  cause  why  he  should  not 
be  held  to  answer  for  the  violation  of  his  oath  that  he  would  faith- 
fully hear  and  examine  the  allegations  and  evidence  of  the  parties 
in  relation  to  the  matters  in  arbitration  controversy  between  af- 
fiant and  C.  D.;  [or  to  show  cause  why  he  should  not  be  pun- 
ished for  contempt  because  of  his  failure  to  perform  his  dutv  as 
aforesaid  as  arbitrator,  or  to  show  cause  why  he  should  not  be 
commanded  to  attend  all  meetings  held  by  said  arbitrators  until 
award  is  made.] 

[Subscribed  and  sworn  to.] 

No,  54. — Affidavit  of  Arbitrators  on  Order  to  Shov^7  Cause. 
[Title  of  Court  and  Cause.] 

/.  /.,  being  duly  sworn,  says  that  the  affidavit  of  A.  B.  upon 
which  the  order  to  show  cause  in  the  said  matter  was  based  is  sub- 
stantially true.  That  affiant  overlooked  the  fact  zvhich  he  oui^ht 
to  have  knozvn,  that  zvhen  he  made  oath  tJwt  "he  zvould  faithfully 
and  fairly  hear  and  examine  the  allegations  and  evidence  of  the 
parties  in  relation  to  the  matters  in  controversy,"  that  he  would 
he  guilty  of  perjury  if  he  refused  either  "to  hear  fairly  or  faitli- 
fully"  or  to  "examine  the  ez'idence,"  and  his  only  excuse  is  that 
he  has  become  so  accustomed  to  see  similar  oaths  violated  by 
others  that  he  zvas  in  a  large  degree  unconscious  of  zvhat  he  zvas 
doing  when  the  oath  zvas  administered;  and  if  the  court  zvill  ex- 
cuse him,  he  zvill  join  zvith  his  fcllozv  arbitrators  and  attempt 
faithfully  and  fairly  to  make  a  just  azvard. 

No.  55. — Order  Commanding  Arbitrators  to  Join  in  Attempt- 
ing to  Make  Award. 

[Title  of  Court  and  Cause.] 

It  is  hereby  ordered  that  /.  J.  meet  at  all  meetings  with  arbi- 
trators E.  F.  and  G.  H.  in  their  attempts  to  make  a  just  award  in 
the  above-entitled  matter,  and  to  remain  at  each  meeting  until  it 
adjourns. 

No.  56. — Agreement  to  Arbitrate. 

Whereas  a  controversy  is  now  existing  between  A.  B.  and  C. 
D.,  arising  out  of  a  business  transaction  substantially  as  follows: 
On  November  10,  1904,  A.  B.  borrozi'cd  of  C.  D.  $1,000  and  exe- 


$2  New  Book  of  Forms. 

cutcd,  acknowledged  and  delivered  to  C.  D.  a  mortgage  upon  cer- 
tain land  belonging  to  A.  B.  to  secure  the  payment  of  said  loan. 
After  that  transaction  A.  B.  and  C.  D.  became  interested  to- 
gether in  prospecting  for  mineral  oil  until  C.  D.  became  indebted 
to  A.  B.  in  the  sum  of  $10,000.  C.  D.  paid  A.  B.  all  said  indebt- 
edness except  $1,500,  and  A.  B.  threatened  suit  to  recover  said 
balance  unless  C.  D.  zuoidd  release  said  mortgage  and  surrender 
A.  B.'s  promissory  note  for  $100,  zvhich  C.  D.  refused  to  do  upon 
the  ground  that  he  held  the  note  and  mortgage  in  trust  for  his 
wife,  and  that  he  ncr'er  had  any  interest  in  the  mortgage.  The 
question  to  be  decided  is,  Shall  C.  D.  execute  said  assignment? 

Now,  therefore,  we,  the  undersigned,  A.  B.  and  C.  D.,  afore- 
said, do  hereby  submit  the  said  controversy  to  the  arbitrament  of 
H.  F.,  G.  H.  and  I.  J.;  and  we  do  mutually  agree,  that  the  award 
to  be  made  by  the  said  arbitrators,  or  any  two  of  them,  shall  in 
all  things,  by  us,  and  each  of  us,  be  well  and  faithfully  kept  and 
observed ;  provided,  however,  that  the  said  award  be  made  in 
writing,  by  the  said  arbitrators,  or  any  two  of  them,  and  ready 
to  be  delivered  to  the  said  parties,  on  the  first  day  of  May  next, 
and  it  is  hereby  stipulated  that  this  submission  to  arbitration  shall 
be  entered  as  an  order  of  the  superior  court  of  the  City  and 
County  of  San  Francisco,  State  of  California. 

No.  57. — County  Clerk's  First  Entry  in  Register  of  Action. 

[Title  of  Court  and  Cause.] 

A.  B.  and  C.  D.,  Arbitrators. 

Submission  to  arbitration  made  May  i,  1905,  by  stipulation 
that  it  shall  be  entered  as  an  order  of  the  Superior  Court  in  and 
for  the  City  and  County  of  San  Francisco,  State  of  California. 

Submission  Hied  May  i,  1905. 

Time  limited  by  submission  within  which  the  award  must  be 
made  is  on  or  before  Jxine  i,  1905. 

No.  58. — Notice  to  Arbitrators  of  Their  Appointment, 

To£.  F.,  G.  H.,zudl.  J.: 

You  are  hereby  notified  that  you  have  been  chosen  arbitrators, 
as  well  on  the  part  and  behalf  of  the  undersigned  A.  B.  and  C.  D., 
also,  to  arbitrate  award,  etc.;  and  you  are  requested  to  meet  the 
said  parties  at  the  office  of  F.  R.,  in  the  town  of  D.,  aforesaid,  on 
the  third  day  of,  etc.,  at  two  o'clock  P.  M.  of  that  day,  for  the 
purpose  of  fixing  upon  a  time  and  place  when  and  where  the 
proofs  and  allegations  of  the  said  parties  shall  be  heard. 


Arbitration  and  Award.  53 

No,   59. — Notice  of  Hearing. 
To  A.  B.  and  C.  D. : 

Yon  will  please  take  notice  that  the  arbitrators  have  appointed 
a  hearing  in  the  matter  above  specified,  to  be  had  before  them,  at 
the  office  of  S.  B.,  in  the  town  of,  etc.,  on  the  first  day  of,  etc. 

Notice  of  Meeting. — Tf  notice  of  the  time  and  place  of  meeting  on  the 
arbitration  is  not  jjivon  to  the  parties,  the  award  will  be  invalid  as  to 
those  not  notifiod:  Lutz  v.  Linthicum.  33  U.  S.  165,  8  L.  ed.  904.  But  no- 
tice of  the  final  meeting  held  simply  to  make  up  and  sign  the  award 
is  not  roquircd:  Masterson  v.  Kidwell,  2  Cranch  (C.  C),  669,  Fed.  Cas. 
No.  9269. 

No.  6o. — Arbitrator's  Oath. 

We,  the  undersigned  arbitrators,  appointed  by  and  between  S. 
D.  and  H.  M.,  do  swear  that  we,  respectively,  w^ill  faithfully  and 
fairly  hear  and  examine  the  allegations  and  evidence  of  the  said 
parties  in  relation  to  the  matters  in  controversy  between  them,  and 
will  make  a  just  award  therein,  according  to  our  understanding. 

NOTE.— C.  C.  P.,  sec.  1285. 

Conduct  of  Hearing — Arbitrators  S-wom. — All  the  arbitrators  must 
meet  and  act  together,  but  when  mot,  a  majority  may  determine  any 
question.  Before  acting,  they  must  be  sworn  before  an  officer  author- 
ized to  administer  oaths,  faithfully  and  fairly  to  hear  and  examine 
the  allegations  and  evidence  of  the  parties  in  relation  to  the  matters 
in  controversy,  and  to  make  a  just  award  according  to  their  under- 
standing:  Cal.  C.  C.  P.,  sec.  128.5. 

Arbitrators  not  Sworn. — If  they  or  any  of  them  do  not  take  the 
oath  prescribed  by  statute,  the  award  is  invalid:  Hepburn  v.  Jones, 
4  Colo.  98.  In  other  places  it  appears  that  if  the  oath  is  waived  the 
award  is  valid:  Day  v.  Hammond.  57  N.  Y.  479,  15  Am.  Rep.  522:  Otis 
V.  Northrop,  2  Miles,  350;  Grafton  Quarry  Co.  v.  McCully,  7  Mo.  580. 

No.  6i. — Oath  of  Witness  Before  Arbitrators. 

You  do  solemnly  swear  [or  "allir7>i"]  that  the  evidence  voa 
shall  give  to  the  arbitrators  here  present  on  a  controversy  [or, 
"on  certain  matters  in  co)ifroz-crsy"],  between  S.  D.  and  H.  M. 
shall  be  the  truth,  the  whole  truth,  and  nothing  but  the  truth.  So 
held  you  God. 

Powers  of  Arbitrators — Hearing — Adjournment— Oaths. — Arbitrators 
may  appoint  a  time  and  place  for  hearing,  adjourn  from  time  to  time, 
administer  oaths  to  witnesses,  hear  the  allegations  and  evidence,  and 
make  an  award:   C.  C.  P.,  sec.  1284. 

No.   62. — Bond  of  Arbitration. 

Know  all  Men  by  these  Presents:  That  I,  A.  B.,  am  held 
and  firmly  bound  to  C.  D.  in  tlie  sum  of  one  tlwusand  dollars. 


54  New  Book  of  Forms. 

lawful  money  [or  gold  coin]  of  the  United  States,  to  be  paid  to 
the  said  C.  D.,  or  to  his  executors,  administrators,  or  assigns,  for 
which  payment  to  be  well  and  faithfully  made,  I  bind  myself, 
my  heirs,  executors,  and  administrators,  firmly  by  these  presents : 

The  condition  of  this  obligation  is  svtch,  that  if  the  above 
bounden  A.  B.,  his  heirs,  executors,  and  administrators,  shall  and 
do.  in  nil  things,  well  and  truly  abide  by,  perform,  fulfill  and 
keep,  the  award,  order,  arbitrament,  and  final  determination  of 
H  F.,  G.  H.,  and  I.  J.,  of,  etc.,  arbitrators,  appointed  to  arbitrate, 
award,  order,  judge,  and  determine,  of  and  concerning  all  and 
all  manner  of  action  and  actions,  cause  and  causes  of  actions, 
suits,  bills,  bonds,  specialties,  judgments,  executions,  quarrels, 
controversies,  trespasses,  damages,  and  demands  whatsoever,  at 
any  time  heretofore  had,  made,  moved,  brought,  commenced, 
sued,  prosecuted,  done,  suffered,  committed,  or  depending  by  and 
between  the  said  parties,  so  as  the  said  award  be  made  in  writing 
under  the  hands  of  the  said  arbitrators,  or  any  two  of  them,  and 
ready  to  be  delivered  to  the  said  parties  in  difference,  or  such  of 
them  as  shall  desire  the  same,  on  or  before  the  Urst  day  of  May, 
1(^05,  then  this  obligation  to  be  void,  or  else  to  remain  in  full 
force. 

NOTE. — Each  party  may  give  to  the  other  a  similar  bond. 

No.  63. — Condition  of  Bond. 

The  condition  of  the  above  obligation  is  such,  that  if  the  above- 
bounden  C.  D.  shall  well  and  truly  submit  to  the  decision  of  B. 
F.,  G.  H.  and  /.  /.,  named,  selected  and  chosen  arbitrators,  as 
well  by  and  on  the  part  and  behalf  of  the  said  C.  D.  and  A.  B., 
between  whom  a  controversy  exists,  to  hear  all  the  proofs  and  al- 
legations of  the  parties,  of  and  concerning  a  certain  mining  claim 
made  by  and  between  them  aforesaid,  on  the  first  day  of  May, 
ipoj,  and  all  matters  relating  thereto,  so  as  the  award  be  made, 
etc. 

Aribitration  Bonds. — Parties  may  bind  themselves  by  any  penalty 
they  may  agree  upon  to  abide  by  the  award:  Hunt  v.  Zuntz,  28  La.  Ann. 
500.  A  bond  with  a  condition  that  the  judgment  should  be  entered  in 
a  court  of  record  is  valid  as  a  common-law  bond  if  it  is  evident  from 
the  conduct  of  the  parties  that  they  did  not  intend  to  make  a  statutory 
arbitration,  and  where  the  forms  of  such  arbitration  were  not  pursued 
by  them:   Clement  v.  Comstock,  2  Mich.  359. 

A  bond  was  conditioned  to  pay  the  value  of  a  thing  within  ninety 
days  from  the  date  of  the  award.  The  award  was  to  be  made  within 
thirty  days  from  date  of  submission.  Held,  that  the  bond  was  not 
limited  by  the  precise  terms  of  the  agreement,  and  if  the  award  was 
made  within  the  terms  of  the  bond,  though  at  a  date  beyond  that  fixed 
in  the  agreement,  it  was  sufficient:  James  v.  Schroder,  61  Mich.  28,  27 
N.  W.  850. 

A  clause  in  the  bond  was:  "The  decision  of  the  whole,  or  any  two  of 
them  [the  arbitrators]  shall  be  binding,  then  the  above  obligation  to 
be  void;  otherwise,"  etc.  Held,  thnt  this  was  a  condition  for  the 
performance  of  the  award:   Kisler  v.   Kerns,  50  N.   C.  191.     If  a  bond 


Arbitration  and  Awai^ld.  55 

shows  the  character  in  which  the  parties  sign  it,  and  their  respective 
liabilities,   it  is  valid:    Bryan  v.  JefFreys,   104   N.   C.   242,   10  S.   E.   167. 

In  Ohio,  and  other  states,  but  not  in  California,  the  statute  provides 
that  a  bond  must  be  given  to  abide  by  the  award  when  the  submission 
is  made  a  rule  of  court;  in  such  case  the  bond  must  conform  to  the 
statute  and  contain  the  names  of  the  arbitrators:  W.  P.  Seminary  v. 
Blair,  1  Disn.  370. 

A  condition  was  "that  if  the  above-bounden  A.  and  B.  shall  jointly 
and  severally  submit,"  etc.,  "and  shall  well  and  truly  perform  the 
award,"  the  effect  of  the  condition  was  to  render  the  parties  mutual 
sureties,  and  each  was  liable  for  the  performance  of  the  whole  award: 
Greenwood  Assn.  v.  Sullivan,  1  Strob.  454. 

A  clause  in  the  comlition  of  a  bond  that  "the  parties  shall  abide 
by  the  award  of  the  arbitrators"  does  not  mean  that  they  shall  acquiesce 
in  the  award  when  made,  but  that  they  shall  not  revoke  the  submis- 
sion before  the  award  is  made:  Shaw  v.  Hatch,  6  N.  H.  162.  The  case 
of  Pass  V.  Critcher,  112  N.  C.  405,  17  S.  E.  9,  is  exactly  to  the  con- 
trary. 

In  some  states,  if  each  party  claims  affirmative  relief,  it  is  the  prac- 
tice for  the  parties  to  make  and  deliver  to  the  arbitrators  their  prom- 
issory notes  each  to  the  other,  the  defeated  party's  to  be  delivered 
to  the  prevailing  party  after  deduction  by  the  arbitrators  to  the  amount 
Ox  their  award.  In  Drake  v.  Collins,  1  Tyler,  79,  and  Bellows  v.  Barnard, 
Brayt.  29,  such  notes  are  held  to  be  void,  for  want  of  consideration. 

Contra,  Bayley  v.  "Wiswall,  Brayt.  23;  Woodrow  v.  Connor,  28  Vt.  776, 
but  this  last  case  hohls  that  such  a  note  is  good  from  the  time  of  its 
delivery.  When  a  bond  was  given  to  abide  by  an  award,  a  party, 
upon  the  rendition  of  the  award  in  his  favor,  may  sue  on  the  award  on 
the  bond:  Nolte  v.  Lowe,  18  111.  437;  Thompson  v.  Childs,  29  N.  C.  435. 

Deposit  to  Abide  Award. — A  deposit  was  made  with  a  trust  company 
as  security  for  whatever  award  was  made,  with  instructions  to  pav  in 
accordance  with  any  judgment  that  may  be  entered  upon  said  award. 
One  of  the  parties  revoked  his  submission.  That  was  in  New  York. 
The  case  got  into  court  and  it  was  held  that  the  agreement  was  within 
section  2384  of  the  Civil  Code,  and  that  the  other  party  had  an  action 
against  him  and  his  sureties  "for  the  costs  and  expenses,  and  damages 
incurred  in  preparing  for  the  arbitration  and  in  conducting  the  pro- 
ceedings to  the  time  of  revocation":  Union  Ins.  Co.  v.  Central  Trust 
Co.,  58  Hun,  610,  13  N.  Y.  Supp.  17,  87  Hun,  140,  32  N.  Y.  Supp.  838 
33  N.  Y.  Supp.  1135. 

In  a  case  where  $600,  the  entire  deposit,  was  turned  over  by  the  ar- 
bitrators to  the  prevailing  party  to  satisfy  his  award  of  $481. 8<?,  he 
pocketed  the  $600,  and  sued  upon  the  award  for  $481.88.  Held,  that  the 
.$600  deposit  was  not  a  penalty,  but  a  payment:  Schofield  v.  Preston, 
16  Phila.  100. 

No.  64. — Revocation  by  Both  Parties, 

To  S.  N.,  T.  F.,  and  F.  R.,  Esquires: 

Take  notice,  that  we  do  hereby  revoke  your  powers  as  arbitra- 
tors under  the  submission  made  to  you  bv  us  in  writing-,  and 
entered  as  an  order  of  tlie  superior  court,  [or  as  the  case  may  be], 
on  the  first  day  of  Alayj  190^. 


56  New  Book  of  Forms. 

No.  65. — Revocation  by  One  Party — Order  of  Court. 

ToS.  D.: 

You  are  hereby  notified,  that  I  have  this  day  revoked  the  pow- 
ers of  S.  N.,  T.  F.,  and  F.  R.,  arbitrators  chosen  to  settle  the 
matters  in  controversy  between  ns ;  and  that  the  following  is  a 
copy  of  such  revocation :  {Insert  the  revocation  made  by  one  of 
the  parties  only.] 

No.  66. — Revocation  of  Submission. 

[Title  of  Court  and  Cause.] 

In  the  matter  of  A.  B.  and  C.  D.,  it  is  hereby  stipulated  that 
the  matter  of  the  submission  to  arbitration  by  A.  B.  and  C.  D., 
on  May  i,  ipo§,  and  filed  and  entered  on  the  same  day  in  Regis- 
ter of  Actions,  book  112,  Case  No.  ^^,872,  in  county  clerk's  office 
of  the  city  and  county  of  San  Francisco,  is  hereby  revoked. 

No.  67. — Complaint  in  Action  to  Recover  Damages  on  Ac- 
count of  Revocation  of  Submission  to  Arbitration. 

[Title  of  Court  and  Cause.] 

A.  B.  complains  of'C  D.,  and  for  cause  of  action  alleges:  That 
on  the  jflf  day  of  September,  ipoj,  plaintiff  and  defendant  con- 
tracted together  in  writing  as  follows,  to  wit:  [Insert  copy  of 
agreement  to  arbitrate.] 

That  immediately  after  the  execution  of  said  contract,  plaintiff 
made  preparations  to  prosecute  said  arbitration  matter,  by  em- 
ploying experts  to  examine  books  of  account  and  to  make  esti- 
mates of  value,  and  employed  an  attorney  at  law  to  assist  plaintiff 
in  gathering  evidence  to  sustain  plaintiff's  contention  in  said  ar- 
bitration matter,  and  brought  witnesses  to  the  place  where  the 
arbitrators  had  agreed  to  meet,  and  did  meet,  to  wit,  at  room 
jdf.  No.  iy6y  Market  Street,  San  Francisco,  California.  And 
plaintiff  alleges  that  all  said  arbitrators  met  on  twelve  different 
days  at  the  place  agreed  upon,  in  the  month  of  October,  1902,  and 
examined  witnesses  and  documentary  evidence ;  and  both  plaintiff 
herein  and  defendant  appeared  at  every  meeting  held  and  pro- 
duced witnesses  and  brought  counsel  with  them,  and  said  counsel 
conducted  the  arbitration,  and  when  the  evidence  was  all  in  the 
matter  was  argued  by  counsel  on  each  side  and  submitted  to  the 
arbitrators  for  judgment.  That,  while  the  arbitrators  were  con- 
sidering the  matter  before  them,  but  before  an  award  was  made, 
to  wit,  on  October  28,  ipo§,  defendant  served  a  writing  on  plain- 
tiff and  on  each  of  the  arbitrators  revoking  the  submission  to  ar- 
bitration, and  without  plaintiff's  consent  defendant  revoked  said 
submission  to  arbitration,  and  also  notified  plaintiff  and  all  tlie 


Arbitration  and  Award.  57 

arbitrators  at  the  last  meeting  held  that  he  would  have  nothing 
more  to  do  with  said  arbitration,  and  the  arbitrators  adjourned 
without  driy.  That  in  preparing  said  matter  for  arbitration  and 
submission,  and  in  arbitrating  and  submitting  said  matter  plaintiff 
expended  $16^  for  witness  fees,  $200  for  counsel  fees,  $60  for 
examining  and  experting  books  of  account;  and  plaintiff  alleges 
that  his  own  time  occupied  in  preparing  for  said  arbitration  and 
attending  the  several  meetings  was  a  loss  to  him  to  the  extent  of 
$130.  Wherefore,  plaintiff  alleges  that  because  of  defendant's 
revocation  of  said  submission  to  arbitration  he  has  been  damaged 
in  the  sum  of  $373,  and  for  which  he  demands  judgment  and  for 
costs  of  this  action. 

Revocation  of  Submission — Damages  for. — If  a  submission  be  revoked, 
and  an  action  be  brought  therefor,  the  amount  to  be  recovered  can  only 
be  the  costs  and  damages  sustained  in  preparing  for  and  attending 
the  arbitration:  Cal.  C.  C.  P.,  sec.  1290.  This  section  appears  to 
apply  to  all  arbitrations  permitted  by  law  as  limited  by  section  1281, 
Code  of  Civil  Procedure,  whether  made  or  not  made  an  order  of  court, 
but  it  clearly  does  not  deprive  a  party  to  an  arbitration  submission  of 
his  right  f  action  based  upon  his  opponent's  refusal  to  arbitrate  prior 
to  the  revocation.  If  the  submission  caused  a  party  to  permit  a  legal 
right  to  lapse  upon  the  consideration  of  a  violated  promise  to  arbitrate, 
his  right  of  action  is  unquestionable,  under  section  1709,  and  also  under 
subdivision  4  of  section  1710,  Civil  Code,  or  by  a  common-law  action 
for  damage. 

Revocation  and  Witbdrawal  of  Submission. — A  submission  cannot  be 
withdrawn  by  one  party  without  the  consent  of  the  other,  in  the  ab- 
sence of  frnud.  The  words  of  the  statute  are  "mistake,  inadvertence, 
surprise  or  excusable  neglect":  C.  C.  P.,  sec.  473;  but  all  courts  have 
jurisdiction  to  grant  relief  against  fraud:  Church  v.  Shnnklin,  95  Cal. 
62G,  30  Pac.  7S9,  17  L.  R.  A.  207;  but  if  the  submission  is  not  made  by 
the  stipulation  an  order  of  court,  it  may  be  withdrawn  at  any  time 
before  the  award  is  made:  Sidlinger  v.  Kerkow.  82  Cal.  42,  22  Pac.  932. 

If  the  submission  is  not  made  a  rule  of  court  it  may  be  revoked  at  any 
time  before  award,  but  the  adverse  party  has  his  action  for  damages 
on  the  iigrcement  to  submit:  Oregon  etc.  Mortg.  Savings  Bank  v.  Ameri- 
can M.  Co.,  35  Fed.  22;  Sidlinger  v.  Kerkow,  82  Cal.  42,  22  Pac.  932;  but 
if  the  submission  is  nyt  made  an  order  of  court,  the  only  way  to  enforce 
it  is  by  action  founded  upon  the  award:   Gunter  v.  Sanches,  1  Cal.  45. 

No.  68. — Award. 

Tn  Tlir.   I\T ATTKR   01^  TIIR  ARBITRATION    BE- 
TWEEN 7^.  B.  C.  AND  D.  B.  L. 

The  above  cause  having  been  heard  and  determined  before  the 
undersigned,  M.  N.,  named  as  arbitrator  in  the  submission  of  the 
parties,  filed  in  the  court,  to  wit,  on  the  thirty-first  day  of  May, 
and  on  the  first  and  second  days  of  June,  1903.  the  parties  on  each 
day  appearing,  and  all  and  singular  the  evidence  having  been 
heard,  I  hereby  make  award  herein  as  follows : 

That  the  said  R.  B.  C.  is  accountable  to  the  partnership  lately 
existing  between  him  and  said  L.  in  the  sum  of  $491.32. 


58  New  Book  of  Forms. 

And  the  said  D.  B.  L.  is  accountable  to  the  said  partnership  in 
the  sum  of  ^^",905.81. 

And  that,  by  reason  of  the  premises,  the  said  C.  is  entitled  to 
have  and  recover  of  said  L.  one-half  the  difference  between  said 
amounts,  viz. :  $2,'/0j.24  1-2,  and  that  the  said  partnership  be- 
tween the  said  C.  and  L.,  from  this  date  should  be  dissolved. 

NOTE. — This  form  is  a  copy  of  the  award  sustained  by  the  supreme 
court  in  Carsley  v.  Lindsay,  14  Cal.  39.  In  the  text  following  section 
1284  of  the  Code  of  Civil  Procedure,  head  "Forms  of  Awards  Upheld," 
sixteen  forms  of  awards  sustained  by  courts  on  appeal  are  set  out  in 
full,  minus  the  headings. 

No.  69. — Award. 

To  the  Superior  Court  of  the  City  and  County  of  San   Francisco, 

State  of  California: 

The  undersigned,  to  whom  were  submitted,  as  arbitrators,  the 
matters  in  controversy  existing  between  A.  B.  and  C.  D.,  as  by 
their  submission  in  writing,  and  bearing  date  the  first  day  of 
May,  jpo4,  more  fully  appears :  Now,  having  been  first  duly 
sworn  according  to  law,  and  having  heard  the  proofs  and  alle- 
gations of  the  parties,  and  examined  the  matters  in  controversy 
by  them  submitted,  do  make  this  award  in  writing ;  that  is  to  say, 
the  said  C.  D.  shall  make,  execute,  and  deliver  to  the  said  A.  B. 
on  or  before  the  fifth  day  of  June,  instant,  a  good  and  sufficient 
assignment  of  a  certain  mortgage,  executed  by  A.  B.  to  C.  D.,  on 
November  10,  1004,  to  secure  the  payment  of  the  sum  of  $1,000 
by  A.  B.  to  C.  D.  That  the  satisfaction  shall  be  acknowledged 
before  a  notary  public  and  be  delivered  to  C.  D.  without  any 
payment  therefor.  And  we  do  further  award  that  the  said  A.  B. 
and  C.  C.  shall,  within  ten  days  next  ensuing  the  date  hereof,  seal 
and  execute  unto  each  other,  mutual  and  general  releases  of  all 
actions,  cause  and  causes  of  action,  suits,  controversies,  claims, 
and  demands  whatsoever,  for  or  by  reason  of  any  matter,  cause, 
or  thing,  from  the  beginning  of  tlae  world  cfown  to  the  date  of 
the  said  stibmission. 

I  dissent, 

/.  /., 
Arbitrator. 
Variation  of  Award  (A). 

{"The  said  A.  B.  shall  henceforth  forever  cease  to  prosecute  a 
certain  suit  commenced  by  him  against  the  said  C.  D.,  in  the 
superior  court  of,  etc.,  now  pending  and  undetermined  in  the  said 
court;  and  the  said  C.  D.  shall  pay,  or  cause  to  be  paid,  to  the 
said  A.  B.,  on  or  before  the  first  day  of,  etc.,  the  sum  of  one  hun- 
dred dollars,  in  full  satisfaction  of  the  costs,  charges,  and  ex- 
penses incurred  by  the  said  S.  D.  in  and  about  tlie  prosecution 
of  his  suit,  as  aforesaid."] 


Arbitration  and  Award.  59 


Variation  of  Award   (B). 

[Or,  "the  said  A.  B.  shall  pay,  or  cause  to  he  paid,  to  the 
said  C.  D.  the  sum  of  one  hundred  dollars,  within  ten  days  from 
the  date  hereof,  in  full  payment,  discharge,  and  satisfaction  of 
and  for  all  moneys,  debts,  and  demands,  due  or  ozving  from  him, 
the  said  A.  B.,  to  the  said  C.  D/'] 

Award,  How  Made — Service  on  Attorney. — The  award  must  be  in 
writing,  signed  by  a  majority,  find  delivered  to  the  parties.  When  the 
submission  is  made  an  order  of  the  court,  the  award  must  be  filed  with 
the  clerk,  and  a  note  thereof  made  in  his  register.  After  the  expira- 
tion of  five  days  from  the  fi]i>!g  of  the  award,  upon  the  application  of 
a  party,  and  on  filing  an  aflfidiivit.  showing  that  notice  of  filing  the 
award  has  been  served  on  the  adverse  party  or  his  attorney  at  least 
four  days  prior  to  such  application,  and  that  no  order  staying  the  entry 
of  judgment  has  been  served,  the  award  must  be  entered  by  the  clerk 
in  the  judgment-book,  and  thereupon  has  the  effect  of  a  judgment: 
Cal.  C.  C.  P.,  sec.  12S6. 

Award. — The  validity  of  an  award  depends  upon  proper  appointment 
of  the  arbitrators,  and'  the  regularity  of  their  proceedings.  Unless  the 
parties  have  notice  of  the  time  and  place  of  their  meeting  and  an  op- 
portunity to  be  heard,  their  award  is  void:  Curtis  v.  Sacramento,  64 
Cal.  102,  28  Pac.  108.  Parties  to  an  arbitration  are  presumed  to  know 
that  an  award  will  be  final,  and  that  they  must  exercise  due  diligence  in 
presenting  their  evidence:  Montifiori  v.  Eugles,  3  Cal.  431. 

If  the  submission  is  agreed  to  be  made  an  order  of  court,  the  arbi- 
trator must  make  his  award  within  the  time  limited  in  the  agreement. 
In  such  case  both  the  arbitrators  and  the  court  lost  jurisdiction  of  the 
proceeding  unless  there  is  a  stipulation  to  extend  the  time:  Ryan  v. 
Dougherty,  30  Cal.  218. 

An  Award  must  bs  Certain  and  Decisive:  .Jacob  v.  Ketcham,  37  Cal. 
197.  If  the  object  is  to  make  an  end  of  litigation,  and  the  award  is 
uncertain  and  incomplete  upon  its  face,  it  will  be  set  aside:  Pierson  v. 
Norman,  2  Cal.  599. 

It  is  not  necessary  that  an  award  should  provide  that  either  party 
shall  recover  anything  from  the  other.  In  this  case,  it  was  found 
that  a  balanc€  was  due  from  one  party  to  the  other,  and  definitely 
settled  the  rights  of  the  partners  in  the  partnership  property:  Ful- 
more  v.  McGeorge,  91  Cal.  611,  28  Pac.  92. 

The  arbitrators  must  pass  upon  the  whole  subject  in  controversy.  If 
the  terms  of  the  award  render  a  further  inquiry  necessary,  the  award  is 
void:  Porter  v.  Scott,  7  Cal.  312.  The  award  must  not  go  beyond  the 
submission:   "White  v.  Arthur,  59  Cal.  33. 

If  the  award  does  not  disclose  that  each  matter  submitted  is  passed 
upon,  it  will  be  set  aside  on  motion.  If  the  submission  is  general,  those 
matters  only  which  are  laid  before  the  arbitrators  must  be  passed  noon: 
Muldrow  V."  Norris,  12  Cal.  331;  Carsley  v.  Lindsay,  14  Cal.  390.  If  the 
award  on  its  face  appears  to  determine  all  matters  submitted,  and  which 
shows  on  its  face  that  further  inquiry  is  unnecessary,  it  is  complete: 
Fulmore  v.  McGregor,  91  Cal.  611,  28  Pac.  92.  If  a  party  deceitfully  or 
intentionally  withholds  matters  from  the  arbitrators  upon  a  general 
submission,' he  is  estopped  to  recover  an  omitted  demand  designedly 
withheld:  Wyman  v.  Perkins,  39  N.  H.  218;  Robinson  v.  Morse,  26  Vt. 
392. 


6o  New  Book  of  Forms. 

Unreasonable  Award. — An  award  will  not  be  set  aside  in  equity  on 
the  ground  that  it  is  unreasonable  an.l  unjust,  if  there  be  no  corruption, 
partiality  nor  misconduct  of  tht  arbitrators,  nor  any  fraud  practi-ed 
bv  either  of  the  parties:  Davy  v.  Faw,  11  U.  S.  171,  .3  L.  ed.  305;  Under- 
hill  V.  Van  Courtland,  2  .Johns.  Ch.  339.  See  8  Am.  Dec.  .513.  An  award 
provided  that  judgment  shall  be  entered  against  one  of  the  parties  unless 
he,  in  conjunction  with  certain  persons  not  parties  to  the  submission,  and 
over  whom  he  had  no  control,  make  a  deed  to  the  other  party:  Karthaus 
V.  Ferrer,  26  U.  S.  222,  7  L.  ed.  121. 

But  an  award  was  held  to  be  void  which  required  a  party  to  the 
submission  to  cause  a  third  person,  whom  it  does  not  appear  he  has  any 
right  to  dispossess,  to  deliver  the  possession  of  land  to  the  other  party: 
Martin  v.  Williams,  13  Johns.  264.  An  award  must  be  reasonably  pos- 
sible of  performance:  Dunlap  v.  Campbell,  5  "W.  Va.  19.5. 

Uncertain  Awards. — An  award  that  "A.  shall  pay  to  B.  the  sum  of 
money  which  B.  paid  to  A.  for  the  purchase  of  two  horses,  which  were 
sold  together  to  A.  for  $300,"  is  void  for  uncertainty:  Howard  v.  Bab- 
cock,  21  m.  259. 

On  the  submission  of  the  liability  of  a  party  on  an  alleged  sale 
and  constructive  delivery  of  twenty-five  barrels  of  sugar,  the  umpire 
awarded  "that  the  facts  were  sufficient  to  constitute  a  customary  de- 
livery of  the  sugar,"  but  failed  to  show  the  amount  of  the  sugar  or 
the  price  to  be  paid,  or  to  give  any  data  by  which  the  same  could  be 
ascertained  by  computation.  Held,  to  be  void  for  uncertainty:  Ingra- 
ham  V.  Whitmore,  75  III.  24. 

An  award  that  a  party  to  the  submission  pay  the  difference  between 
a  tax  receipt  and  a  note,  which  does  not  set  out  said  papers,  and  is  not 
accompanied  by  them,  and  does  not  refer  to  them  by  date  and  amount, 
is  void  for  uncertainty:  Hollingsworth  v.  Pickering,  24  Ind.  65. 

An  award  that  B.  should  pay  A.  a  certain  sum  "in  property  as  good 
as  he  had  received,"  and  that  A.  should  pay  B.  "the  amount  which 
B.  had  paid  to  E.,"  is  void  for  uncertainty:  Banks  v.  Adams,  23  Me. 
259.  An  award  for  a  certain  sum  of  money  "in  furniture"  is  void 
for  uncertainty:  Eamler  v.  Brotherline,  1  Pears.  462.  "For  the  balance 
due  on  a  single  bill,"  without  reference  to  indorsements  or  payments 
on  the  bill,  is  void  for  the  same  reason:  Burkholder  v.  McFerron,  3  Serg. 
&  E.  422.  That  W.  pay  J.  $500,  "including  the  rent  that  would  be  due 
by  J.  at  the  termination  of  the  lease  at  rising  sun,"  void  for  the 
same  reason:   Stanley  v.  Southwood,  45  Pa.  St.   189. 

A  statute  similar  to  that  of  California,  declaring  that  no  submission 
to  arbitration  "shall  be  made  respecting  the  claim  of  any  person  to 
any  estate,  in  fee  or  for  life,  to  real  estate,"  a  submission  and  award 
of  that  nature  is  not  merely  voidable,  but  void;  and  therefore  incapable 
of  ratification:   Weles  v.  Peck,  26  N.  Y.  42. 

Finality  of  Award. — If  the  award  leaves  the  matter  submitted  open 
to  controvf>rsy,  it  is  void:  McCullough  v.  Myers,  3  Ky.  206.  If  the  award 
is  not  final,  the  consideration  for  the  agreement  to  arbitrate  fails,  and 
either  party  may  insist  upon  setting  it  aside:  Patton  v.  Baird,  42  N.  C. 
255.  The  point  covered  by  the  two  cases  above  cited  was  said  to  be 
the  law  in  Carnochan  v.  Christie,  24  U.  S.  446,  6  L.  ed.  516,  and  in  Lutz 
V.  Linthicum,  33  U.  S.  165,  8  L.  ed.  904. 

If  the  award  is  conditional  or  alternative,  it  may  be  in  effect  final, 
and  if  so  will  be  upheld.  For  example:  "Judgment  shall  be  entered 
against  A.  for  .$10,000  unless  he  surrenders  to  B.  the  possession  of  the 
schooner  'Mary  B. '  "  Such  awards  are  upheld  in  Thornton  v.  Carson, 
11  U.  S.  596,  3  L.  ed.  451,  and  many  other  cases. 

Lands,  Title  to,  etc. — An  award  is  not  void  because  it  decides  that  a 
tract  of  land  belongs  to  one  of  the  parties:  Crabtree  v.  Green,  8  Ga.  8. 
It  may  settle  boundaries  without  ordinary  releases:   Rogers  v.  Ken  wick. 


Arbitration  and  Award.  6i 

1  Qnincy  ("Afass.),  327.  Arbitrators  not  having  power  to  vest  title  to 
land  in  either  party,  an  award  that  one  party  is  to  take  land  of  the 
otlier  narty  at  a  stated  price,  but  directing  no  conveyance  to  the  other,  is 
not  final:  Miller  v.  Moore,  7  Scrg.  &  R.  164.  lu  California  the  title 
to  rtul  property  in  fee  or  for  life  cannot  be  submitted  to  arbitration: 
C.  C.  P.,  sec.  1281.  It  would  seem  that  an  award  directing  A.  to  exe- 
cute and  deliver  to  B.  a  quitclaim  to  tract  C.  would  not  be  void. 

An  award  that  T.  shall  have  the  right  to  support  for  his  building  in 
a  wall  erected  bv  S.  is  not  objectionable.  Title  is  not  involved:  Trues- 
dale  V.  Straw,  58  N.  H.  195. 

Strict  Law  need  not  be  Followed. — Arbitrators  are  not  bound  to  de- 
cide according  to  strict  law  under  a  general  submission,  but  when  they 
state  the  reasons  for  their  award,  it  will  be  presumed  that  they  intend 
to  decide  according  to  law,  and  in  such  case  a  mistake  apparent  upon 
the  face  of  the  award  is  fatal:  Muldrow  v.  Norris,  2  Cal.  74,  56  Am. 
Dec.  313. 

Forms  of  Awards  Upheld. — "We,  the  arbitrators,  find  and  agree  that 
P.  [the  vendor]  pay  S.  [the  vendee]  $^30,  and  take  the  crop  as  it  now 
stands,  on  the  said  plantation."  Held,  to  be  sufficiently  certain:  Pike 
V.  Stallings,  71  Ga.  860. 

"We  find  that  "there  is  due  and  owing  by  A.  to  B.  the  snm  of  $500, 
and  that  judgment  be  rendered  by  the  court  in  favor  of  B.  the  sum  of 
$^00  and  costs,"  is  certain:  Garitee  v.  Carter,  16  Md.  309.  The  question 
to  be  arbitrated  was,  as  to  whether  A.  had  trespassed  upon  the  land 
of  B.  The  award  briefly  said:  We  find  that  "there  was  no  trespass." 
It  was  certain:  Harralson  v.  Pleasants,  61  N.  C.  365. 

An  award  for^.  "of  three  judgments  against  B.,  dated  21  of  Decern- 
ier,  iSn,  amounting  to  $165,  with  interest;  also  one  other  judgment 
amounting  to  $jo,  dated  'November  16,  1S16,  together  with  interest": 
Held,  to  be  suflieiently  certain:  White  v.  .Jones,  8  Serg.  &  R.  349. 

An  award  "that  one  of  the  parties  shall  own  in  his  own  right  all 
the  interest  wh-eh  the  parties  joirtly  had  in  a  brewery  situated  at  B.," 
is  not  uncertain:   Byers  v.  Von  Deusen.  5  Wend.  208. 

A  dispute  arose  about  the  right  to  the  possession  of  a  sawmill,  etc., 
and  the  award  was:  "We  award  to  A.  one-third  of  the  sawmill,  ane-ihird 
of  the  mill  yard,  and  one-third  of  the  water  privilege,  and  land  enough  to 
make  in  all  two-thirds  of  five  acres  bounded,"  etc.,  to  be  so  surveyed 
as  not  to  include  B.'s  house  and  barn,  and  A.  to  remove  a  certain  an',s(- 
mill  adjoining  said  sav,-mill  within  three  months,"  is  not  uncertain: 
Hewett'v.  Fiirman,  16  Serg.  &  R.  135. 

In  awards,  such  descriptions  as  the  "Peter  tract,"  the  "Riley  tract" 
and  the  "Mill  tract"  or  the  " Eris  tract"  will  be  upheld:  Farris  v.  Ca- 
pcrton,  38  Tcnn.  606.  An  award  requiring  conveyances  to  be  made  of 
certain  portions  of  land  "up  to  the  original  claim  lines"  is  not  invalid: 
Williams  v.  Warren,  21  HI.  541. 

The  dispute  was  whether  A.  had  the  right  to  stop  the  water  from 
B.'s  shingle-mill,  and  also  the  right  of  the  party  to  the  use  of  the 
water.  The  award  was  that  "A  had  the  right  for  the  use  of  his  saw- 
mill to  stop  in  a  prudent,  proper  and  judicious  manner,  and  retain  the 
water  from  the  shingle-mill  by  a  dam  above  and  near  the  Durgan  bridge, 
and  at  the  place  where  the  dam  then  stood,  and  of  the  height  of  the 
present  dam,  sufficient  to  operate  the  sawmill  as  it  had  been  operated 
since  the  dam  near  the  bridge  had  been  built,  and  not  otherwise,  and 
that  B.  should  not,  in  any  manner  nor  for  any  purpose,  obstruct  the 
water,  but  should  permit"^  A.  to  use  it  without  molestation."  Held 
sufficient:  Pike  v.  Gage,  29  N.  H.  401. 

An  award  that  a  mill  owner  should  "keep  on  said  cap  log  flash-boards 
twelve  incrcs  wide,  at  all  rimes  except  in  times  of  freshet."  was  upliehl 
as  to  the  form,  but  set  aside  because  the  word  "freshet"  was  so  vary- 


62  New  Book  of  Forms. 

ing  in   meaning  as  to   necessitate   constant   litigation:    Harris   v.   Social 
Mfg.  Co.,  9  E.  I.  99,  11  Am.  Eep.  224. 

An  award  that  T.  shall  have  the  right  of  support  for  his  building 
and  the  timbers  thereof  in  a  wall  erected  by  S.,  separating  the  buildings 
of  T.  and  S.  in  as  full,  ample  and  secure  a  manner  as  they  are  now 
supported  therein,  for  so  long  a  time  as  said  wall  shall  be  capable  of 
furnishing  said  support,  and  not  to  become  ruinous  and  unsafe,  and  that 
S.  shaU  have  the  same  right  of  support  for  her  building  and  the  tim- 
bers thereof  in  the  wall  of  said  T.  in  the  m.anner  they  are  now  sup- 
ported thereby,  and  for  the  same  time:  Truesdale  v.  Shaw,  58  N.  H.  207. 

An  award  providing  that  notes  which  were  ordered  by  the  award 
should  be  "satisfactorily  secured"  upheld,  because  the  words  above 
quoted  had  a  well-known  commercial  meaning:  Cutter  v.  Cutter,  48  N. 
Y.  Super  Ct.  470.  The  question  submitted  was  the  value  of  work  on  a 
house.  The  arbitrators  set  out  the  items  of  work  done  and  set  a  value 
to  each  item.  Award  held  to  be  clear  and  certain:  Saunders  v.  Heaton, 
12  Ind.  20. 

A  countv  had  a  dispute  with  its  treasurer  in  respect  to  the  amount 
due  it.  The  arbitrators  found  as  follows  "We  find  the  said  J.  deficient 
in  the  teacher's  fund  $66o.go;  interest  thereon  at  6  per  cent,  to  Decem- 
ber 75,  1883,  $144-48.  "We  find  J.  deficient  in  the  contingent  fund  $143.24; 
interest  on  the  same  to  December  75,  1883,  $10-67.  Total  deficiency,  with 
interest  added  on  all  funds,  $^=^7.08-"  Award  held  to  be  certain:  Dis- 
trict Tp.  of  Walnut  v.  Rankin,  70  Iowa,  65,  29  N.  W.  806. 

"We  agree  that  B.  S.  pay  all  costs,  and  assess  the  plaintiff's  damage 
to  $100,"  interpreted  by  the  court  to  mean  that  defendant  E.  S.  was 
"awarded"  to  pay  to  the  plaintiff  $100  and  also  his  costs  expended 
in  the  cause  referred:   Carter  v.  Sams,  20  N.  C.  182. 

Arriving  at  Decision  by  Chance. — Arbitrators  each  wrote  down  a  sum 
for  the  award  and  divided  the  aggregate  by  the  number  of  arbitrators. 
After  that  was  done  each  gave,  the  court  said,  a  "clear"  assent  to  the 
result  thus  arrived  at,  and  held  the  award  to  be  valid:  Whitlock  v. 
Duffield  1  Hoff.  Ch.  110;  but  in  another  case  it  was  said  that  where 
they  arrived  at  a  decision  by  dividing  by  two  the  aggregate  sums 
which  each  thought  the  plaintiff  was  entitled  to,  it  was  held  to  be 
'valid:  Luther  v.  Medbury,  18  R.  I.  141,  49  Am.  St.  Rep.  753,  26  Atl. 
37. 

In  another  case  the  parties  were  each  separately  asked  at  what  sum 
he  valued  a  certain  privilege  in  dispute,  and,  comparing  the  answers 
with  their  own  (the  arbitrators')  estimates,  took  the  mean  between 
the  estimates  of  the  parties  as  the  award.  Held  to  be  valid:  Brown 
V.  Bellows,  21  Mass.  179. 

Eeasons  for  Award. — Arbitrators  are  not  required  to  find  facts  nor 
give  reasons  for  their  award:  Connor  &  Pratt  Arbitration,  128  Cal.  279, 
60  Pac.  862. 

No  reasons  need  be  given  by  arbitrators  for  their  award.  Their  duty 
is  best  discharged  by  a  simple  announcement  of  the  result  of  their  in- 
vestigations: Curtis  V.  Staring,  4  Wend.  198,  and  the  other  cases  in 
Maryland  and  North  Carolina. 

If  arbitrators  give  their  rea'sons  and  they  do  not  state  a  cause  of 
action,  the  award  will  not,  for  that  cause,  be  vacated:  Goodwin  v.  Yar- 
brough,  1  Stew.  152.  If  arbitrators,  in  their  award,  state  their  reasons 
for  it.  it  will  be  presumed  that  they  intended  to  decide  according  to  law: 
Muldrow  V.  Norris,  2  Cal.  74,  5^  Am.  Dec.  313. 

"We,  the  arbitrators  in  this  cause,  find  for  P.  the  sum  of  $7,300," 
was  good:  Alexandrr  v.  Mulhall,  1  Posey  (Tex.),  764.  "In  the  matte? 
of  difference  submitted  to  us  wo  find  that  A.  owes  B.  $3,000,"  is  good: 
Bancroft  v.  Grover,  23  Wis.  463,  99  Am.  Dec.  195. 


ARniTRATION    AND    AwARD.  63 

Place  of  Execution. — Having  heard  the  evidence  at  the  place  ap- 
pointed, the  award  mav  be  rf^duecd  to  writing  elsewhere:  Conrad  v. 
Johnson,  20  Ini  421;  Steere  v.  Brownell,  113  111.  415. 

Signing  Award. — If  there  is  an  umpire  and  if  he  signs  the  award, 
the  signing  of  one  or  more  arbitrators  is  surplusage:  Kile  v.  Chupin,  9 
Ind.  150;  .Jenkins  v.  Meacher,  46  Miss.  84;  City  of  New  York  v.  Butlor, 
1  Barb.  325;  Shields  v.  Renno,  1  Tenn.  313. 

If  by  mistake  the  award  is  made  and  is  not  signed,  and  if  the  time 
has  not  elapsed  for  making  it,  the  arbitrators  may  sign  it:  Saundfrs  v. 
Heaton,  12  Ind.  20.  Award  signed  by  a  majority  of  arbitrators  is 
good:   Windiseh  v.  Hildebrant,  5   Week.  Law  Bull.    (Ohio)   415. 

Items  in  Awards. — It  is  not  necessary  to  state  the  items  of  which  the 
award  is  comyMjsed:  Meyers  v.  York  etc.  R.  Co.,  2  Curt.  2S.  Under  a 
general  submission  an  award  of  a  stated  amount  is  all  that  is  necessary; 
Brewer  v.  Bain,  60  Ala.  153. 

If  the  matter  submitted  consists  of  cross-demands  by  each  party,  an 
award  of  a  gross  sum  is  good:  Steams  v.  Cope,  109  Til.  340. 

It  is  not  even  necessary  to  declare  in  the  award  that  the  matters  sub- 
mitted are  decided,  and  that  an  award  has  been  made:  Scaton  v.  Ken- 
dall, 60  111.  289. 

An  award  as  follows:  "We,  having  undertaken  the  reference  and  hav- 
ing heard,  etc^  we  find  for  A.  $4,000,"  was  upheld:  Hays  v.  Miller,  12 
Ind.  187. 

Award  Beyond  the  Issnes. — An  award  that  goes  beyond  the  issues 
is  invalid  as  a  whole  when  the  outside  matter  cannot  be  separated 
without  violating  the  plain  intention  of  the  parties:  White  v.  Arthur, 
59  Cal.  33. 

Alteration  of  Award. — When  an  award  is  made  and  delivered,  the  arbi- 
trators have  no  authority  to  alter  it,  even  to  correct  mistakes,  without 
the  consent  of  the  parties:  Dudley  v.  Thomas,  23  Cal.  365;  Porter  v. 
Scott,  7  Cal.  312. 

Conclusiveness  of  Award. — It  is  conclusive  upon  all  matters  submitted 
when  it  does  not  appear  from  the  record  upon  what  evidence  the  find- 
ings were  based.  Contradictory  affidavits  as  to  what  the  evidence  was 
will  not  be  considered:  Fulmore  v.  McGeorge,  91  Cal.  611,  28  Pac.  92. 

Impeachment  of  Award. — All  the  states  and  territories  of  the  United 
States  that  have  had  the  question  before  them  hold  that  an  award  can 
only  be  impeached  for  mistake,  corruption,  partiality  or  gross  mis- 
behavior: Peachy  v.  Ritchie,  4  Cal.  204,  and  forty  other  eases  in  the 
several  states. 

Enforcement  of  Part  of  Award. — An  award  bad  in  part  may  be  en- 
forced for  the  part  which  is  good  if  the  award  is  divisible:  Muldrow  v. 
Morris.  2  Cal.  74,  56  Am.  Dec.  313;  Williams  v.  Walton.  9  Cal.  146,  12 
Cal.  345. 

Award  as  Estoppel. — If  an  award  is  valid  on  its  face  it  cannot  be 
impeached,  if  at  all,  without  bill  stating  the  grounds  of  objection: 
Brewer  v.  Bain,  60  Ala.  153.  In  a  pending  suit,  if  it  is  referred  under 
an  agreement  that  the  award  shall  be  made  a  rule  of  court,  the  award 
cannot  be  impeached  bv  way  of  answer  to  the  suit:  Gravson  v.  Meredith, 
17  Ind.  357, 

In  all  cases  the  submission  must  be  produced  to  show  that  the  award 
was  within  the  submission:   ilillner  v.  Turner.  20  Kv.  240. 

A  defendant  pleads  an  award  as  a  defense.  His  objections  cause 
the  arbitrator  to  err.  Held,  that  he,  having  misled  the  arbitrator,  could 
not  object  to  the  admission  of  the  award:  Morris  v.  Osborn,  64  Barb.  .54:?. 

PlaintifT  sued  for  work  ant  labor.  Defendant  answered,  "Special 
agreement  to  refer."     Plaintiff  in  reply  alleged  fraud  by  the  referees. 


64 


Ni;\v  Book  of  Forms. 


Held,  that  if  tlie  referees  acted  in  good  faith  plaintiff  should  have  judg- 
ment for  the  amount  awarded  by  the  referees:  Blankenship  v.  Adkins,  12 
Tex.  53G. 

As  a  Bar  to  an  Action. — The  original  cause  of  action  is  not  extin- 
guished by  an  award  which  finds  a  stated  sum  of  money  to  be  due  and 
extends  the  time  of  payment:  Howett  v.  Monical,  25  111.  122.  An 
award  may  forbid  the  further  prosecution  of  an  action:  Purdy  v.  Dela- 
von,  1  Gaines,  304.  If  it  puts  an  end  to  the  original  controversy  it 
bars  another  action:  Preston  v.  Whitcomb,  11  Va.  47.  If  two  submit 
each  his  claim,  and  the  arbitrators  only  take  evidence  to  the  claims  of 
one  of  them,  the  other  paying  the  award  against  him  may  assert  his 
demands  to  the  courts  for  adjustment:  Pritchard  v.  Daly,  73  111.  523. 

A  valid  award  merges  the  original  demand:  Eogcrs  v.  Holden,  13  111. 
293.  An  award  upon  a  submission  of  all  demands  between  the  parties 
does  not  bar  a  demand  not  presented  to  the  arbitrators:  Mt.  Deseret  v. 
Tremont,  75  Me.  252,  and  other  eases.  Contra,  MeJimsey  v.  Traverse, 
1  Stew.  244,  18  Am.  Dec.  43. 

Liberal  Construction — An  award  should  be  liberally  and  favorably 
construed,  according  to  the  intent  of  the  parties,  and  if  possible,  so  as 
to  give  them  effect.  It  is  the  modem  rule  to  which  there  is  no  general 
dissent:  Bancroft  v.  Grover,  23  Wis.  463,  99  Am.  Dec.  195.  They  are 
construed  according  to  common  sense  and  popular  understanding:  Gentry 
V.  Bamett,  25  Ky.  312.  Technical  precision  is  unnecessary  if  its  meaning 
can  be  ascertained  when  read  in  connection  with  the  submission,  or 
shown  by  parol:  Butler  v.  City  of  New  York,  1  Hill,  489. 

If  one  part  of  an  award  is  irreconcilable  with  another  part,  the  first 
part  prevails  and  the  part  is  rejected:  Cox  v.  Cogger,  2  Cow.  638,  14 
Am.  Dec.  522. 

Actions  Founded  on  Award. — Action  cannot  be  commenced  on  an 
award  under  a  common-law  submission  until  notice  of  it  has  been  given: 
Mahoney  v.  Spring  Valley  "Water  Works,  52  Cal.  159. 

Action  for  debt  will  lie  on  an  award  of  money  without  regard  to  the 
penalty  of  a  bond  given,  the  penalty  being  important  only  to  enforce 
payment  of  damages  for  a  revocation:   Ex  parte  Wallis,  7  Cow.  522. 

The  consideration  upon  which  a  suit  upon  an  award  is  sustained  is 
the  contract  of  submission:  Wilcox  v.  Singletry,  Wright  (Ohio),  420; 
Hume  V.  Hume,  3  Pa.  St.  144.  The  remedy  to  recover  is  not  upon  the 
submission,  but  upon  the  award:  Rank  v.  Hill,  2  Watts  &  S.  56,  37  Am. 
Dec.  483.  In  a  common-law  submission,  the  right  to  enforce  the  award 
by  action  is  clear:  Swasey  v.  Laycock,  1  Hardy,  335. 

An  action  at  common  law  can  be  maintained  on  an  award  under  a 
statutory  submission  which  does  not  comply  with  the  statute:  Collins 
V.  Karatopsky,  36  Ark.  316;  Low  v.  Nolte,  16  HI.  475;  Fink  v.  Kink, 
8  Iowa,  313. 

The  mode  of  proceeding  by  arbitration  provided  by  statute  is  not 
exclusive.  An  award  valid  at  common  law  will  support  an  action: 
Tynan  v.  Tate,  3  Neb.  388. 

No  action  at  common  law  can  be  maintained  on  an  award  under  a 
statutory  submission  which  does  comply  with  the  statute:  Erie  Tel.  etc 
Co.  V.  Bent,  39  Fed.  409;  Estep  v.  Larsh,  16  Ind.  82;  Town  of  Deerfield 
V.  Arms,  37  Mass.  480,  32  Am.  Dec.  228. 

Time  of  Entry  of  Award. — On  April  22d  a  submission  was  delivered 
to  a  county  clerk  and  marked  "filed."  On  the  same  day  he  noted  in 
his  register  the  names  of  the  parties  and  date  of  submission,  and  on 
May  12th,  same  year,  added  the  names  of  the  arbitrators  and  the  time 
limited  for  award.  The  award  had  been  made  and  filed  April  23d  and 
judgment  was  rendered  May  14th.  Held,  that  the  entries  were  regular. 
Section  1283  of  the  code  provides  that  when  the  submission  is  filed  with 


Arbitrj\tion  and  Award.  65 

the  clerk,  he  "must  Ihrrevpon  enter  in  his  register  a  note  of  the  siib- 
misaion  "  of  the  same  matters  he  entered  April  22d  and  May  12th.  The 
court  said  that  the  word  "thereupon"  is  less  strict  than  the  word  "im- 
mediately," because  the  submission  itself  stipulated  that  the  award 
might  be  entered  at  any  time:  California  Academy  of  Sciences  v. 
Fletcher,  99  Cal.  207,  33  Pac.  855. 

In  Nevada,  under  a  statute  the  same  as  in  California,  it  was  held 
that  unless  a  note  of  what  the  statute  requires  is  made  before  the  award 
is  filed  the  judgment  is  void:   Steel  v.  Steel,  1  Nev.  27. 

Unless  the  submission  stipulates  that  it  may  be  entered  as  an  order 
of  court,  and  unless  the  stipulation  and  submission  are  filed  with  the 
clerk,  and  unless  the  clerk  enter  in  his  register  of  actions  a  note  of  the 
submission  with  the  names  of  the  parties  and  the  name  of  the  arbitra- 
tors, the  court  is  without  jurisdiction  to  enforce  the  award:  Ryan  v. 
Dangliorty,  30  Cal.  218,  38  Cal.  G76. 

When  the  submission  to  arbitration  is  made  an  order  of  court,  the 
clerk  may  enter  judgment  on  the  award  without  any  further  order  of 
court:  Carsley  v.  Lindsay,  14  Cal.  390. 

Costs  in  Arbitration  Proceedings. — In  California  the  question  of  costs 
in  arbitration  proceedings  appears  to  be  in  part  a  question  of  construc- 
tion. It  is  a  spcci:il  proceeding:  C.  C.  P.,  sec.  23.  Parties  to  actions 
or  proceedings  are  entitled  to  costs:  C.  C.  P.,  sec.  1021.  In  many  cases 
in  other  states  arbitrators  are  frequently  designated  referees,  and  such 
reference  seems  by  analogy  to  be  allowable.  In  California  referees 
are  allowed  five  dollars  each  for  each  and  every  day  spent  in  the  busi- 
ness of  the  reference,  but  the  parties  may  agree  in  writing  upon  any 
other  rate  of  compensation:  C.  C.  P.,  sec.  1028.  It  seems  that  such 
construction  would  be  in  harmony  with  the  intention  of  the  statute  and 
the  decisions  of  other  states,  provided  that  the  word  "plaintiff"  is 
eliminated  from  section  1022  of  the  Code  of  Civil  Procedure,  and  the 
word  "defendant"  in  section  102-1  of  the  Code  of  Civil  Procedure;  but 
if  not  eliminated,  to  regard  the  party  as  plaintiff  or  defendant,  as  he 
happens  to  be  so  entitled  in  the  submission;  and  always  keeping  in  view 
the  fact  that  section  1021  provides  that  parties  to  actions  and  proceed- 
ings are  entitled  to  costs  as  hereinafter  (in  the  manner)  provided;  that 
is  to  say,  by  bill  of  costs,  etc.  The  assumption  that  California  courts 
would  so  hold  is  strengthened  by  section  1290  of  the  Code  of  Civil  Pro- 
cedure, which  provides  that  if  a  submission  to  arbitration  be  revoked, 
the  amount  to  be  recovered  can  only  be  the  costs  and  damages  sustained 
in  preparing  for  and  attending  the  arbitration,  such  damages  being 
recoverable  by  action  only  where  the  submission  was  not  made  an 
order  of  the  superior  court,  because  it  is  provided  that  when  the  sub- 
mission is  entered  as  an  order  of  court,  it  cannot  be  revoked  without 
the  consent  of  both  parties,  but  in  all  other  cases  it  may  be  revoked 
at  any  time  before  the  award  is  made:  C.  C.  P.,  sec.  1283. 

Authority  of  Arbitrators  to  Award  Costs. — Awarding  costs  and  the 
legal  right  to  costs  without  award  are  dillorent  questions.  It  has  been 
h(!d  in  California  that  arbitrators  have  the  right  to  award  costs,  though 
not  rx]ircss]y  authorizeil  by  the  submission:  Dudley  v.  Thomas,  23  Cal. 
3f)5;  but  power  to  award  implies  the  power  not  to  award.  The  question 
on  the  carpet  is,  Has  the  prevailing  party  a  right  to  costs?  and  if  he 
has,  then  he  must  file  a  cost-bill.     It  seems  he  is  entitled  to  costs. 

Judgment  on  award,  each  party  to  pay  his  own  costs,  is  bad;  the 
award  carries  costs:  Barnum  v.  Dodd,  3  Harr.  7.  Costs  of  reference 
follow  the  award,  though  not  expressed  in  the  agreement  of  reference: 
Lindsay  v.  McConnell,  11  Week.  Notes  Cases,  173. 

It  is  said  that  if  an  award  is  silent  as  to  costs,  a  judgment  for  costs 
is  erroneous:  Hamilton  v.  Wort,  7  Blackf.  34S;  HaiTalson  v.  Pleasants, 
62  N.  C.  365.  Contra,  Bellas  v.  Levy,  2  Rawlc,  21;  Coupland  v.  Anderson, 
New  Forms — 5 


66  Njivv  Book  of  Forms. 

2  Call  (Va.),  106.  If  an  awar.l  requires  each  party  to  do  certain  things 
and  is  silent  about  costs,  each  party  must  pay  his  own:  Arrington  v. 
Battle,  1  Car.  Law  Eep.  109;  Haralson  v.  Pleasants,  61  N.  C.  365. 

Award  Eelow  Court's  Jurisdiction. — No  costs  allowed:  Lendenburgher 
T.  Unruh,  1  Browne,   194. 

Use  of  Koom. — Snch  use  may  be  charged  as  costs  if  used  by  arbi- 
trators:  Butcher  v.  Scott,  1  Clark,  311. 

Costs — Compensation  of  Arbitrator. — Plaintiff  was  selected  to  act  as 
arbitrator  between  Starkey  et  al.  and  one  Bring.  Plaintiff  performed 
his  duties  and  made  his  award  in  favor  of  defendants.  He  notified  de- 
fendants that  his  award  was  ready,  but  would  not  deliver  it  unless  they 
undertook  to  pay  him  for  his  services.  They  promised  to  see  him  paid, 
and  plaintiff  delivered  the  award  to  them.  Defendants  refused  to  pay. 
Plaintiff  sued.  Defendants  set  up  the  statute  of  frauds.  Held,  that 
defendants'  promise  was  an  original  undertaking,  and  that  plaintiff 
was  not  obliged  to  deliver  his  award  before  payment,  and  that  defend- 
pnts'  promise  was  supported  by  a  good  consideration — that  is  to  say, 
plaintiff  parted  with  a  right  he  had  (to  withhold  his  award  until  he 
was  paid),  and  upon  defendant's  promise  to  pay  he  delivered  it  to  them: 
Young  V.  Starkey,  1  Cal.  426. 

An  arbitrator  may  award  himself  a  fee  for  his  services  though  the 
power  to  do  so  is  not  expressly  contained  in  the  snbmission:  Strong  v. 
Ferguson,  14  Johns.  161 ;  New  York  Lumber  Co.  v.  Schneider,  1  N.  Y. 
Supp.  441;  Burnell  v.  Everson,  50  Vt.  449;  Wade  v.  Powell,  31  Ga.  L 
Contra,  People  v.  Newell,  13  Barb.  91;  Griffin  v.  Hadley,  53  N.  C.  82. 

All  courts  hold  that  if  the  submission  stipulate  that  the  arbitrators 
may  fix  their  compensation,  they  may  do  so:  Blossom  v.  Van  Amringe^ 
63  N.  C.  65. 

If  an  arbitrator  renders  some  services  contemplated  by  the  submis- 
sion, he  is  entitled  to  compensation  even  if  no  decision  is  reached: 
Goodall  V.  Cooley,  29  N.  H.  48;  and  he  may  recover  without  proving  an 
express  promise  to  pay:  Hennman  v.  Hopgood,  1  Denio,  188,  43  Am.  Dec. 
663;  but  they  are  not  entitled  to  compensation  unless  they  organize,  or 
are  prevented  to  organize  by  the  parties:  Baker  v.  Hunter,  1  Miles,  357; 
and  they  are  entitled  to  pay  for  all  the  time  they  were  necessarily 
engaged  in  the  case,  including  the  time  of  deliberation:  Hassinger  v. 
Dever,  2  Miles,  411. 

If  two  cases  are  tried  before  the  same  arbitrators  as  though  they 
were  only  one  case,  they  are  only  entitled  to  one  fee:  Butcher  v.  Scott, 
1  Clark,  311;  but  if  the  cases  are  not  altogether  the  same,  they  are  en- 
titled to  two  fees:  Id.  No  award  filed  within  the  time  provided — ^no 
fees:  Hornet  v.  Godfried,  3  Kulp.,  10. 

Agreement  of  Parties  as  to  Compensation. — An  arbitrator  is  not  privy 
to  any  agreement  between  the  parties,  and  both  parties  are  liable  to 
him  for  the  full  amount  of  his  services:  Young  v.  Starkey,  1  Cal.  426. 
He  may  have  his  action  for  his  compensation:  Holcomb  v.  Tiffany,  38 
Conn.  271;  and  they  may  all  join  in  one  action:  Id.  Contra,  Butman 
V.  Abbot,  2  Me.  361.  They  may  retain  their  award  until  paid  for  their 
services:   Clement  v.  Comstock,  2  Mich.  359. 

Arbitrators  may  be  compelled  by  the  court  to  make  an  award:  Cal. 
C.  C.  P.,  sec.  1283;  but  making  an  award  and  retaining  it  until  fees  are 
paid  are  quite  different.  The  right  to  compensation  and  the  right  to 
retain  an  award  of  no  value  except  to  a  party  to  it  is  not  compensatioau 
Young  v.  Starkey,  1  Cal.  426,  says  an  award  may  be  retained  until  com- 
pensation is  paid,  but  the  right  to  compensation  without  a  promise  to 
pay  is  not  decided  in  that  case. 

An  award  stated  that  the  arbitrators  "decide  the  case  in  favo»  of 
the   defendants,   and   the   costs   of  reference   taxed    [blank]    seventy-five 


Arcitration  and  Award.  67 

dollars,  and  the  costs  of  eonrt  taxorl  by  the  court,  and  all  costs  paid 
by  the  plaintiff."  Held,  that  the  fact  relating  to  costs  was  void  for 
uncertainty:   Leomister  v.  Fitchburg  etc.  R.  Co.,  7  Allen,  38. 

If  costs  are  awarded  without  stating  the  amount,  or  prescribing  a 
mode  by  which  the  amount  is  to  be  ascertained  as  to  costs,  it  is  void: 
Schuyler  v.  Vandtrvier,  2  Caines,  235.  An  award  on  its  face  uncertain 
and  incomplete  must  be  set  aside:   Picrson  v.  Norman,  2  Cal.  599. 

Judg'.  ent  on  Award. — If  the  submission  is  made  an  order  of  court, 
the  clerk  may  enter  it  without  further  order:  Carsley  v.  Lindsay,  14 
Cal.  390.  It  cannot  be  entered  at  any  time  unless  it  is  made  by  stipula- 
tion an  order  of  court:  Eyan  v.  Daugherty,  30  Cal.  218,  38  Cal.  676. 

Judgment  is  not  void  if  entered  within  five  days  from  date  of  award: 
Hoogs  v.  Morse,  31  Cal.  128.  If  the  judgment  is  entered  in  the  absence 
or  a  valid  statutory  agreement  of  submission  to  arbitration,  it  is  abso- 
lutely void.  The  court  may  set  a  void  judgment  aside  with  or  without 
a  motion:  Matter  of  Krciss,  96  Cal.  617,  31  Pac.  740. 

A  judgment  entered  upon  an  award  is  a  judgment  upon  a  proceeding 
commenced  in  a  court  of  record,  and  is  therefore  appealable:  Fairchild 
V.  Doten,  42  Cal.  125. 

Failure  of  Arbitrators  to  Agree. — If  the  arbitration  fails  because 
the  arbitrators  c^annot  agree,  a  court  has  no  power,  unless  given  by  stat- 
ute or  by  agreement  of  the  parties,  to  appoint  new  arbitrators:  Harry- 
man  V.   Harrvman,  43   Md.   140. 

A  stipulation  in  a  contract  that  disputes  shall  be  settled  by  arbitra- 
tion will  DOt  preclude  a  suit,  where  the  arbitrators  appointed  fail  to 
agree  and  the  parties  cannot  agree  upon  other  arbitrators:  Prelzfelder 
v.  Merchants'  Ins.  Co.,  116  N.  C.  491,  21  S.  E.  302. 

Death  of  Arbitrator. — After  submission  the  statute  of  limitation  would 
have  run  against  the  debt  in  dispute.  The  death  of  an  arbitrator  pre- 
vented an  award.  Held,  that  the  debt  was  not  extinguish^.  For  this 
no  reason  is  given,  except  the  court  says:  "The  debt  is  left  to  the 
judicial  tribunals  if  no  other  mode  can  be  agreed  upon":  Shreiuer  v. 
Cummings,  63   Pa.  St.   13. 

No.  70. — County  Clerk's  Second  Entry  in  Register  of  Actions, 

[Title  of  Court  and  Cause.] 

A.  B.  and  C.  D.,  Arbitrators. 
On  this  jd  day  of  June,  ipoj,  the  arbitrators  in  the  above-en- 
titled matter  filed  their  award. 

No.  71. — Notice  of  Filing  Award  to  be  Served  on  Adverse 

Party. 
[Title  of  Court  and  Cause.] 
To    C.  D.: 

Please  take  p'^tiVe  thnt  tVie  nrbitmtors  in  the  above-entitled  mat- 
ter have  made  their  award,  and  it  was  filed  with  the  county  clerk 
of  tlie  said  cUy  un<i  tuumy,  on  Liie  ^d  day  of    June,  ipoj. 

No.  72. — Affidavit  that  Notice  of    Filing    Award    has    been 

Served. 
[Title  of  Court  and  Cause.] 

A.  B.,  being  sworn,  says  that  on  the  f mirth  day  of  June,  1005, 
m  the  said  city  and  county,  he  personally  served  notice  of  filing 


68  New  Book  of  Forms. 

the  award  in  the  above-entitled  matter  on  C.  D.,  by  delivering 
him  a  copy  of  the  original  notice  now  on  file,  in  words  and  figures 
as  follows:  [Insert  copy  of  notice  as  in  Form  No.  71.]  And  de- 
ponent further  states  that  no  order  staying  the  entry  of  judgment 
in  said  matter  has  been  served. 

No.  73. — Affidavit  on  Motion  to  Vacate  Judgment. 
[Title  of  Court  and  Cause.] 

C.  D.,  being  duly  sworn,  says  that,  in  the  above-entitled  matter, 
a  majority  of  the  arbitrators,  to  wit,  B.  F.  and  G.  H.,  agreed  upon 
an  aw  ard  in  favor  of  A.  B.,  and  on  the  third  day  of  June,  ipo^, 
filed  L..e  same  with  the  county  clerk  of  said  county.  That  by  said 
award  said  C.  D.  is  directed  to  make,  execute,  acknowledge,  and 
deliver  to  A.  B.,  on  or  before  June  15,  1905,  a  good  and  sufficient 
assignment  of  a  certain  mortgage  executed  and  delivered  by  the 
said  A.  B.  to  C.  D.,  on  November  10,  IQ04,  to  secure  the  sum  of 
$1,000.  At  a  meeting  of  the  arbitrators,  C.  D.  offered  to  prove 
that  the  said  mortgage  zvas  the  property  of  his,  C.  D.'s  wife,  but 
it  zvas  taken  in  his,  C.  D.'s,  name,  because  he  zvas  trustee  for  his 
wife  under  her  deceased  father's  will.  That  after  the  execution 
of  said  mortgage  to  C.  D.  he  and  A.  B.  became  mutually  interested 
in  certain  oil  ventures  and  A  B.  became  indebted  to  C.  D.  in  the 
sum  of  $10,000.  That  he  paid  all  his  indebtedness  to  A.  B.  ex- 
cept $i,50(^  and  he,  A.  B.,  threatened  suit  to  recover  said  amount, 
and  the  controz'crsy  betzveen  A.  B.  and  C.  D.  in  the  matter  of 
said  arbitration  zvas,  zvhcther  C.  D.  Imd  the  right  to  make  said 
assignment  without  the  consent  of  his  zvife.  A  majority  of  the 
hoard  refused  to  permit  aifiant  to  prove  the  facts  as  above  stated. 
Wherefore  affiant  prays  for  an  order  staying  the  entr})  of  said 
judgment,  and  for  a  new  hearing  before  the  same  or  other  arbi- 
trators as  the  court  may  deem  proper.* 

Award  Vacated  When. — The  court,  on  motion,  may  vacate  the  award 
upon  either  of  the  following  grounds,  and  may  order  a  new  hearing 
before  the  same  arbitrators,  or  not,  in  its  discretion:  1.  That  it  was  pro- 
cured by  corruption  or  fraud;  2.  That  the  arbitrators  were  guilty  of 
misconduct,  or  committed  gross  error  in  refusing,  on  cause  shown,  to 
postpone  the  hearing,  or  in  refusing  to  hear  pertinent  evidence,  or  other- 
wise acted  improperly,  in  a  manner  by  which  the  rights  of  the  party 
were  prejudiced;  3.  That  the  arbitrators  exceeded  their  powers  in  mak- 


*Thi8  form  makes  a  very  strong  showing  on  motion  for  new  trial, 
and  it  is  the  proper  thing  to  do,  when  composing  a  form  to  fit  what  was 
said  in  the  Matter  of  the  Arbitration  of  Connor  and  Pratt,  3  28  Cal. 
279,  60  Pac.  862,  viz.:  In  making  awards  arbitrators  are  not  bound  to 
observe  principles  of  "dry  law,"  but  arc  expected  to  make  them  "ex 
aeqtu)  bono. ' '  The  motion  might  have  been  made  on  the  ground  that  a 
judgment  or  award  is  a  matter  pertaining  to  equity,  and  therefore  not 
w^ithin  the  meaning  of  the  word  "controversy"  as  used  in  section  128, 
Code  of  Civil  Procedure:  See  Taggart  v.  Fay,  1  Grant  Cas.  (Pa.)   190. 


Arhitration  and  Award.  69 

ing  their  award;  or  that  they  refuserl,  or  improperly  omitted,  to  consider 
a  part  of  the  mattcrH  submitted  to  them;  or  that  the  award  is  indi-fi- 
nite  or  cannot  be  performed:   C.  C.  P.,  sec.   ]287. 

The  word  "fr;>ud"  does  not  appear  to  be  used  in  the  sense  of  comij>- 
tion,  but  clearly  means  what  courts  designate  as  legal  fraud,  which 
may  have  resulted  from  honest  intention.  The  intent  to  commit  aetiial 
fraud  "is  always  a  question  of  fact":  C.  C,  sec.  1573.  Actual  fraud  is, 
among  other  acts,  the  positive  assertion  in  a  manner  not  warranted  by 
the  information  of  the  person  making  it,  of  that  which  is  not  true, 
"though  he  believes  it  to  be  true."  Also  "any  other  act  fitted  to 
deceive  is  a  fraud":   C.  C,  sec.  1572. 

Any  improper  proceeding — that  is  to  say,  any  act  whatever  which  the 
court  may  think  prejudicial  to  a  party — is  a  good  ground  for  relief, 
which  practically  gives  the  court  authority  to  grant  rehearing  sub- 
stantially upon  the  same  grounds  they  are  authorized  to  grant  new  trials 
in  civil  eases:  C.  C.  P.,  sec.  657,  subds.  1,  2,  5,  6,  7. 

Impeactiment  of  Award. — An  award  cannot  be  impeached  because  it 
is  contrary  to  law  and  evidence.  The  Code  of  Civil  Procedure,  sections 
1287,  12S8,  prescribes  the  sole  grounds  to  vacate  an  award  on  motion: 
Carsley  v.  Lindsay,  14  Cal.  390.  This  case  was  decided  prior  to  codes. 
Section  336  of  the  practice  act  was  identical  with  section  1287,  Code  of 
Civil  Procedure;  but  at  that  time  there  was  no  enactment  similar  to 
sections   1572,   1573  of   the   Civil   Code. 

In  Carsley  v.  Lindsay,  it  was  attempted  to  correct  the  award  on  mo- 
tion. The  court  does  not  hold  that  the  error  complained  of  was  not 
subject  to  correction,  or  review,  on  motion.  The  decision  decided  a  point 
of  practice  only. 

Refusal  to  Postpone  Meeting. — If  they  unreasonably  refuse  to  post- 
pone a  meeting,  the  award  may  be  set  aside:  Torrence  v.  Amsden,  3 
McLean,  509,  Fed.  Cas.  No.  14,103. 

Time  to  Procure  Witnesses. — An  award  will  be  vacated  if  arbitrators 
refuse  time  to  a  party  to  procure  an  absent  witness:  Torrence  v.  Amsden, 
3  McLean,  509,  Fed.  Cas.  No.  14,103;  Ilollingsworth  v.  Leiper,  1  Dall. 
IGl. 

Refusal  to  Hear  Witnesses. — Refusal  to  hear  evidence,  pertinent  and 
material,  is  good  ground  for  setting  aside  their  award:  Vancourtland  v. 
Cnderhill,   17  Johns.  405. 

Delegation  of  Authority. — Arbitrators  cannot  delegate  their  authority: 
Lrll  v.  llardrsty,  13  Ky.  831. 

Errors  and  Misconduct. — An  award  will  not  be  disturbed  unless  it 
shows  errors  of  law  or  fact  on  its  face:  Tyson  v.  Wells,  2  Cal.  122;  even 
if  it  is  made  to  appear  that  the  arbitrators  consulted  with  others,  if 
it  appears  that  they  acted  on  their  own  judgment  in  making  the  award: 
Simons  v.  Mills,  80  Cal.  118,  22  Pac.  25. 

If  the  awardee  accepts  the  judgment  award,  and  receives  the  amount 
awarded  in  satisfaction,  he  thereby  waives  all  errors  or  misconduct 
on  the  part  of  the  arbitrators:  Hooges  v.  Morse,  31  Cal.  128.  The  statute 
must  be  substantial! v  complied  with:  Fairchild  v.  Dotcn,  42  Cal.  125; 
Krciss  V.  Hotaling,  96  Cal.  622,  31  Pac.  740. 

Parol  Evidence  Outside  of  the  Award. — If  final  on  its  face,  no  agree- 
ment dehors  it  will  be  heard  to  show  that  it  is  open  for  further  proof: 
Todd  V.  Barlow,  2  Johns.  Ch.  551.  After  a  general  award  a  court  will 
not  inquire  into  mistakes  by  evidence  outside  of  the  record  of  it:  Mul- 
drow  V.  Norris,  2  Cal.  74.  56  Am.  Dec.  313. 

Mistakes  of  arbitrators  in  matters  of  law  may  be  proved  by  extrinsic 
evidence  in  order  to  set  aside  an  award:  Claypool  v.  Miller.  4  Blackf. 
163;  that  is  to  say,  if  a  reference  be  to  common-law  arbitrators,  objeo- 


yo  New  Book  of  Forms. 

tions  to  an  a^anl  may  be  shown  by  extrinsic  evidence:  Moore  v.  Bar- 
nett,  17  Ind.  349. 

If  an  award  is  lost,  parol  evidence  will  be  admitted  to  prove  its  eon- 
tents.  Brown  v.  East,  21  Ky.  405.  The  existence  of  an  award  may 
be  proved  by  parol:  Parker  v.  Pawtucket  Mut.  Fire  Ins.  Co.,  3  E.  T.  192. 

If  the  award  is  ambiguous,  its  terms  may  be  explained  by  parol:  Bntlor 
V.  City  of  New  York,  1  Hill,  489;  a  witness  will  not  be  permitted  on 
the  hearing  of  exceptions  to  a  report,  to  prove  that  the  referees  had 
misunderstood  his  meaning:   Howard  v.  Salter,  1  Brown,  90. 

It  may  be  shown  by  parol  that,  by  consent,  arbitrators  had  been  sub- 
stituted for  those  appointed  by  the  court:  Douglas  v.  Brandon,  6.5  Tex. 
58. 

If  the  terms  of  submission  are  uncertain,  parol  evidence  may  be  given 
of  the  matters  submitted.  The  meaning  of  the  expression  "certain 
controversies  and  accounts"  in  a  written  submission  may  be  ascer- 
tained by  parol:  Davy  v.  Faw,  1  Cranch  C.  C.  440,  Fed.  Cas.  No.  3663. 

Extrinsic  evidence  may  be  used  to  identify  the  matters  submitted: 
Burros  v.  Guthrie,  61  111.  70.  The  terms  of  a  submission  cannot  be 
varied  by  parol:  Eichardson  v.  Suffolk  Ins.  Co.,  44  Mass.  573.  It  is  not 
necessary  to  state  in  an  award  the  reasons  for  it,  but  evidence  aliunde 
may  show  what  were  the  points  decided:  Shackelford  v.  Purket,  9  Ky. 
435,  12  Am.  Dec.  422.  It  is  said  that  "parol  evidence  is  not  only  ad- 
missible to  show  what  matters  were  acted  upon  by  arbitrators":  Brown 
V.  Brown,  49  N.  C.  123. 

In  an  action  on  an  award  parol  evidence  is  admissible  to  show  what 
matters  were  submitted  and  what  matters  were  brought  to  the  notice 
of  the  arbitrators:  Walker  v.  Walker,  60  N.  C.  255;  and  also  to  show 
upon  what  matters  the  arbitrators  acted:  Osborn  v.  Calvert,  83  N.  C. 
365. 

An  award  cannot  be  impeached  by  parol  evidence  that  the  arbitrators 
did  not  intend  what  the  award  shows  on  its  face  they  did  do:  Doke  v. 
James,  4  N.  Y.  568.  A  written  award  is  not  open  to  modification  accord- 
ing to  what  was  the  understanding  of  the  arbitrators:  Scott  v.  Green,  89 
N.  C.  278. 

An  award  cannot  be  assailed  by  the  parol  testimony  of  one  of  the 
arbitrators  except  upon  the  ground  of  fraud,  partiality  or  corruption: 
King  V.  Jemison,  33  Ala.  499. 

Under  Alabama  code,  section  3447,  an  arbitration  is  final  unless  im- 
peached for  partiality,  fraud  or  corruption.  Held,  that  the  testimony 
of  arbitrators  is  not  admissible  to  show  error  or  mistake  in  their  de- 
cision:  Chajiman  v.  Ewing,   78  Ala.  403. 

Bias,  Prejudice  or  Interest,  of  Arbitrator. — Where  arbitrators  de- 
riv'd  their  authority  from  the  parties  and  not  from  the  court,  right 
business  relationship  is  not  ground  for  setting  aside  the  award:  Fisher 
V.  Towner,  14  Conn.  26.  An  arbitrator  selected  by  one  party  who  was 
not  on  speaking  terms  with  the  other  party,  and  showed  his  prejudice 
and  malice  in  considering  the  case,  is  not  a  proper  person  to  act  if  the 
court  recommits  the  award  for  further  action:  Brown  v.  Harper,  54 
Iowa,  546,  6  N.  W.   747. 

A  small  indebtedness  of  an  arbitrator  to  one  of  the  parties  and  it 
is  not  shown  that  it  was  insecure,  or  that  its  payment  depended  on  the 
result  of  the  controversy,  is  not  a  reason  to  set  a.side  an  award:  Ander- 
son V.  Burchett,  48  Kan.  153,  29  Pae.  315. 

An  arbitrator  being  a  creditor  of  one  of  the  parties  is  no  objection 
in  the  absence  of  evidence  of  his  partiality  to  his  debtor:  Wallis  v. 
Carpenter,  95  !Mass.  227.  The  presumption  is  that  he  is  not  partial  un- 
less he  is  abundantly  secure. 

It  is  gross  misconduct  for  a  person  who  has  formed  and  expressed  an 
opinion  on   the  case  to  serve  as   arbitrator  without  informing   the  parties 


Arbitration  and  Award.  71 

of  the  fact:  Boattie  v.  nillia-d,  55  N.  H.  428.  Where  parties  agree  that 
all  disputes  may  be  referreil  to  A.,  if  the  fact  is  concealed  that  he  is  a 
partner  of  the  other  one  of  the  parties,  his  award  is  void:  Connor  v. 
Simyison,   7   Atl.    161. 

Relationship  Disqualifies. — Davis  v.  Forshee,  34  Ala.  107;  Spearman  v. 
Willson,  44  Ga.  473.  But  the  rule  is  not  applicable  where  the  relative 
was,  bv  his  relative,  urged  to  sit:  Daugherty  v.  McWhorter,  15  Tenn. 
256. 

Knowledge  of  Party. — Generally,  where  it  appears  the  objecting  party 
knew,  at  tlic  time  of  the  submission,  or  during  the  hearing  of  the 
matter  in  controversy,  that  the  arbitrator  was  either  biased,  prejudiced 
or  interested,  it  is  too  late  to  object  after  award  is  made.  This  is 
sustained  by  the  reasoning  in  Baltimore  etc.  R.  Co.  v.  Canton  Co.,  70 
Md.  405,  17  Atl.  394. 

Testi'.iony  and  Examination  of  Arbitrators. — An  arbitrator  will  be 
allowed  to  sustain  but  not  to  impeach  his  award:  Stone  v.  Atwood,  28 
111.  80.  He  may  show  whether  a  certain  claim  was  included  in  the  award: 
Stevens  v.  Gray,  2  Harr.  347.  He  may  give  evidence  to  establish  a  mis- 
take in  the  award:  King  v.  Armstrong,  25  Ga.  264.  Contra,  Newland  v. 
Douglass,  2  .Johns.  62.  He  is  not  allowed  to  testify  as  to  the  construction 
of  his  award:   Mulligan  v.  Perry,  64  Ga.  567. 

He  cannot  be  called  upon  to  disclose  the  grounds  upon  which  the  award 
was  made:  Kingston  v.  Kincaid,  1  Wash.  C.  C.  448,  Fed.  Cas.  No.  7821. 

Entry  Set  Aside. — .Judgment  vacated  where  submission  is  illegal:  Van 
Dvke  V.  Besser,  35  Ga.  173.  An  award  will  not  be  set  aside  because  of 
fraud  in  original  cause  of  action,  when  the  facts  were  known,  when 
the  motion  to  enter  judgment  on  the  award  was  made:  Clark  v.  Thur- 
man,  46    Ga.    97. 

Courts  of  equity  will  set  aside  awards  for  fraud,  mistake  or  accident: 
Muldrow  V.  Norris,  2  Cal.  74,  56  Am.  Dec.  313;  explained,  2  Cal.  130; 
approved,  2  Cal.  325,  4  Cal.  125,  207;  cited,  14  Cal.  394;  Craft  v.  Thomp- 
son, 51  N.  H.  544.  It  will  not  be  set  aside  if  the  provisions  of  the  stat- 
ut  are  substantially  complied  with;  but  if  an  award  is  not  good  under 
the  statute,  but  is  good  as  a  common-law  award,  it  will  not  be  set  aside: 
Matter  of  Krriss.  96  Cal.  617,  31  Pac.  740. 

Award  Against  Law,  etc. — Courts  will  set  aside  awards  for  fraud,  mis- 
take or  accident,  when  it  appears  on  the  face  of  the  award:  Peachy  v. 
Ritchie,  4  Cal.  205;  Muldrow  v.  Norris,  2  Cal.  74,  56  Am.  Dec.  313.  This 
ease  was  cited  in  2  Cal.  130,  325,  4  Cal.  125,  207,  and  14  Cal.  394. 

Arbitrators  did  not  appoint  time  to  hear  proofs  nor  did  they  hear 
proofs;  did  not  act  upon  their  independent  judgment,  but  acted  under 
an  agreement  between  two  insurance  companies  and  one  of  the  arbi- 
trators. The  consent  to  the  award  by  the  insurance  company  was  ob- 
tained by  the  concealment  of  books  and  inventories  which  would  have 
shown  that  the  loss  was  much  less  than  the  award.  Held,  that  such 
action  vitiated  the  consent  of  the  insurance  companies  to  the  award: 
Stockton  Agricultural  Works  v.  Glens  Falls  Ins.  Co.,  98  Cal.  557,  33  Pac. 
633. 

Award  Corrected. — The  court  may,  on  motion,  modify  or  correct 
the  award,  where  it  appears:  1.  That  there  was  a  miscalculation  in  fig- 
ures upon  which  it  was  made,  or  that  there  is  a  mistake  in  the  description 
of  some  person  or  property  therein;  2.  When  a  part  of  the  award  is  upon 
matters  not  submitted,  which  part  can  be  separated  from  other  parts, 
r.nd  does  not  aft'ect  the  decision  on  the  matters  submitted;  3.  When  the 
award,  though  imperfect  in  form,  could  have  been  amended  if  it  had 
been  a  verdict,  or  the  imperfection   disregarded:    C.  C.  P..  sec.   12S8. 

When  the  verdict  is  announced,  if  it  is  informal  or  insufficient  in  not 
covering  the  issue  submitted,  it  may  be  corrected  by  jury  under  the 
advice  of  the  court,  or  the  jury  may  be  again  set  out:  C.  C.  P.,  sec.  619. 


72  New  Book  of*  Forms. 

AmeiK'ing  Verdicts. — The  court  may  amend  a  verdict  when  it  is  de- 
fective in  something  merely  formal,  and  which  has  no  connection  with 
the  merits  of  the  case:  Perkins  v.  Wilkins,  3  Cal.   137. 


No.  74. — Notice  of  Motion  to  Correct  Award. 

[Title  of  Court  and  Cause.] 

Please  take  notice  that  A.  B.  will  move  the  court  to  correct  the 
award  filed  herein  on  August  j,  1905,  by  striking  out  the  sum  of 
$73.6=)  awarded  in  favor  of  C.  D. 

The  motion  will  be  made  upon  the  affidavit  oi  A.  B.  filed  herein 
on  application  to  stay  the  entry  of  judgment  herein,  and  all  the 
papers  in  the  matter,  and  on  the  ground  that  said  amount  was 
inserted  in  the  award  by  mistake. 

No,  75. — Order  Staying  Entry  of  Judgment  on  Award. 

[Title  of  Court  and  Cause.] 

Upon  application  of  C.  D.,  supported  by  his  affidavit,  and  upon 
the  award  and  other  papers  on  file  herein,  it  appearing  that  there 
is  good  cause  therefor,  it  is  ordered  that  the  entry  of  judgment 
upon  said  award  be,  and  the  same  is,  by  this  order,  stayed  until 
the  further  order  of  this  court. 


No.   76. — Order  Amending  Award. 

[Title  of  Court  and  Cause.] 

This  matter  came  on  to  be  heard  upon  motion  after  a  hearing 
on  the  merits,  all  parties  being  present  at  the  hearing ;  it  is  ordered 
that  the  clerk  of  this  court  deduct  from  the  award  filed  on  August 
?,  1905,  the  sum  of  $73.75,  and  that  judgment  be  entered  for  the 
amount  of  the  award  as  so  reduced. 


No.   77. — Order  to  vShow  Cause  Why  Award  Should  not  be 
Vacated  and  Staying  the  Entry  of  Judgment. 

[Title  of  Court  and  Cause.] 
To.  A.  B.. 

Please  take  notice  that  on  Friday  the  fifteenth  day  of  July,  1905, 
at  10  o'clock  A.  M.,  in  the  above-entitled  action,  C.  D.  will  move 
the  court  to  vacate  the  award  made  in  said  matter  upon  the  ground 
that  it  was  procured  by  fraud,  and  said  motion  will  be  based  upon 
the  papers  in  the  matter  and  upon  the  affidavit  of  C.  D.,  a  copy 
of  wliich  is  served  with  tliis  notice. 


Arbitration  anq  Award.  73 

No.  78. — Order  Vacating  an  Award  and  Ordering  a  Rehearing. 
[Title  of  Court  and  Cause.] 

This  matter  cominj^  on  to  be  heard,  and  after  hearing  beino^ 
submitted,  it  is  ordered  the  award  herein  made  be  vacated  and  the 
whole  matter  be,  and  is  hereby,  submitted  to  the  same  arbitrators 
for  rehearing  in  accordance  with  the  opinion  of  this  court  this 
day  given. 

No.  79. — Affidavit  on  Motion  to  Modify  or  Correct  an  Award. 

[Title  of  Court  and  Cause.] 

A.  B.,  being  sworn,  says :  That  he  is  one  of  the  parties  in  the 
above-entitled  matter.  That  in  the  award  made  in  said  matter 
and  filed  o\\  August  5,  190 j,  it  appears  upon  the  face  of  the 
award  that  in  computing  interest  on  tJte  amount  awarded  in  favor 
of  C.  D.  a  miscalculation  of  the  interest  due  upon  $i2j6s./2,  from 
January  3,  1902,  to  August  5,  1905,  to  the  amount  of  $73.65 
against  ctffiant;  that  notice  of  said  award  has  been  served  on  affi- 
ant, and  unless  said  mistake  is  corrected,  it  will  become  final. 

Wherefore,  affiant  prays  for  an  order,  staying  the  entry  of 
judgment  on  said  award  until  the  further  order  of  the  court.* 

Practice — Appeal  from  Decision. — Decision  upon  the  motion  is  sub- 
ject to  appeal  in  the  same  manner  as  an  order  in  a  civil  action;  but  the 
.iudgment  entered  before  a  motion  is  not  subject  to  appeal:  C.  C.  P., 
sec.   1289. 

Practice  After  Award  is  Filed. — When  the  submission  is  made  an  order 
of  court  the  award  must  be  filed  with  the  clerk  and  noted  in  his  register 
of  actions.  The  clerk  has  authority  to  enter  judgment  upon  application 
of  a  party  upon  the  award  without  an  order  of  court,  but  he  has  no 
authority  to  do  so  prior  to  the  expiration  of  five  days  after  the  award 
IS  filed;  and  then  he  has  no  authority  to  make  the  entry  unless  an  aflS- 
davit  is  filed  in  the  arbitration  proceedings,  showing  that  no  onler 
staying  the  entry  of  judgment  has  been  served;  and  also  showing  that 
notice  of  filing  the  award  has  been  served  on  the  adverse  party  or  his 
attorney  at  least  four  days  prior  to  the  application  to  enter  judgment. 

Appeal. — After  notice  of  service  that  an  award  has  been  served, 
the  dissatisfied  party  has  four  days  within  which  to  make  his  motion  to 
vacate  the  award.  If  a  motion  is  not  made  to  vacate  the  award  before 
judgment,  appeal  from  the  judgment  is  not  allowed,  but  appeal  is  al- 
lowed from  the  order  denying  the  motion. 

It  is  not  misconduct  to  neglect  to  swear  witnesses  unless  it  is  shown 
that  the  appellant  asked  to  have  them  sworn,  or  objected  to  their  not 
being  sworn,  or  excepted  to  their  unsworn  statements.  The  only  grounds 
for  vacating  or  modifying  an  award  are  those  set  forth  in  sections  1287, 
1288,  of  the  Code  of  Civil  Procedure,  which  grounds  do  not  include 
ordinary  error  or  faults  of  judgment,  but  only  "gross"  faults:  Arbi- 
tration Between  Connor  and   Pratt,   128   Cal.   279,  60   Pac.   862. 


*An   order  made   ex  parte  may  be   discharged   ex  parte.     In   cases  of 
such  glaring  mistakes   they  are  seldom  refused:   C.   C.  P.,  sec.  937. 


74  New  Book  of  Forms. 

It  was  objected  on  appeal  that  notice  of  the  time  and  place  of  meet- 
ins:  had  not  been  g^iven  to  the  defendant.  The  court  said  that  the  pres- 
ence of  the  defendant  when  the  arbitrators  met,  and  his  telling  them 
to  go  ahead,  and  his  being  represented  at  his  direction  through  the  pro- 
ceedings by  his  foreman,  and  his  taking  possession  of  the  award,  con- 
stituted a  waiver  of  all  objections  by  him:  Foster  v.  Carr,  135  Cal.  83, 
67  Pac.  43. 


ASSIGNMENT. 


No.  8o. — Assignment  Annexed  to  Instrument. 

Know  all  Men  by  these  Presents:  That  we,  F.  S.  and  R. 
C,  named  in  the  annexed  instrument,  in  consideration  of  the 
sum  of  one  hundred  thousand  dollars,  gold  coin  of  the  United 
States,  to  us  in  hand  paid  by  W.  B.  and  J.  B.,  of  the  City  and 
Coimty  of  San  Francisco,  and  State  of  California,  the  receipt 
whereof  is  hereby  acknowledged,  do,  by  these  presents,  sell  and 
transfer,  to  the  said  B.  and  B.,  their  heirs  and  assigns,  the  said 
instrument,  and  all  oiir  right,  title,  and  interest  in  and  to  the  same, 
aiithorizing  them  in  our  names,  or  otherwise,  but  at  their  ov/n 
co?t,  charge,  and  expense,  to  enforce  the  same  according  to  the 
tenor  thereof,  and  to  take  all  measures  which  may  be  necessary 
for  the  recovery  of  the  within  instrument. 

Contract  Assignment — What  may  be  Assigned. — Choses  in  action,  eon- 
l  agent  interests  and  expectations,  things  that  do  not  but  may  possibly 
exist,  if  such  assicrnmcnts  are  fairly  made  and  are  not  against  public 
policy.  In  such  case  the  assignment  will  take  effect  when  the  subject 
assigned  becomes   a   reality. 

A  contract  to  sell  all  or  any  part  of  the  product  of  a  farm  garden, 
or,  in  brief,  all  or  any  fruit  of  the  earth  before  it  is  even  planted, 
during  a  stated  season  upon  a  stated  farm,  etc.,  may  be  assigned:  La 
Kue  V.  Groezingcr,  84  Cal.  281,  18  Am.  St.  Rep.  179,"  24  Pac.  42. 

A  controller's  warant  may  be,  and  is,  subject  to  all  defenses  which 
would  be  allowed  ngainst  the  first  holder:  National  Bank  of  D.  O.  Mills 
V.  Herold,  74  Cal.  603,  5  Am.  St.  Eep.  476,  16  Pac.  507. 

A  contract  not  to  run  boats  on  a  certain  line  of  travel  and  upon 
violation  of  the  contract  to  pay  a  stated  sum  of  money  gives  a  right 
of  action  to  an  assignee  of  the  contract:  Cal.  Steam  Nav.  Co.  v. 
Wright,  6  Cal.  325.  For  the  same  reason  a  contract  to  pay  money 
on  condition  that  a  defendant  would  withdraw  his  defense  to  a  suit: 
Gray  v.  Garrison,  9  Cal.  248;  and  so  is  a  contract  for  the  use  of  a 
stallion  for  a  season :  and  a  purchaser  of  the  horse  from  the  owner  is 
entitled  to  all  the  benefits  arising  out  of  such  contract:  Doll  v.  Ander- 
son, 27  Cal.  248. 

A  provision  in  a  contract  that  it  should  not  be  assigned  without  the 
written  consent  of  the  other  party  to  the  contract  does  not  bar  an 
assignment  of  money  to  become  due  under  the  contract  as  security  for 


Assignment  75 

indebtedness  of  the  contractor  to  the  assignee:  Norton  v.  Whitehead, 
84  Cal.  263,  18  Am.  St.  Rop.  172,  24  Pac.  154;  Edwards  v.  Bolley,  96 
Lai.  408,  31  Am.  St.  Rep.  234,  31  Pac.  267. 

An  attorney  may  assign  a  debt  due  for  services  rendered,  if  the  ser- 
vices he  agreed  to  perform  arc  practically  rendered:  Taylor  v.  Black 
Diamond   Coal  Mine,  86  Cal.  589,  25  Pac.  51. 

Plaintilf's  partners  delivered  to  defendants  gold  to  be  taken  to  San 
Francisco,  and  coined  for  their  benefit,  and  returned  to  them.  While 
the  gold  was  in  the  hands  of  defendant,  C.  sold  to  plaintiff  his  interest 
in  the  gold  and  gave  a  receipt  evidencing  the  sale.  Defendant,  after 
the  sale,  received  coin  for  the  gold  and  a  creditor  of  C.  attached  the 
coin  by  garnishing  defendants.  Defendants  had  no  notice  of  the  sale 
by  C.  to  plaintiff  until  the  day  after  the  garnishment,  when  plaintiSf 
demanded  C.'s  share  of  the  coin.  Held,  that  the  gold  in  defendant's 
hands  was  in  the  constructive  possession  of  all  the  owners.  C.  had  no 
exclusive  interest  in  any  part  of  the  gold  until  it  was  coined  and  divided 
among  the  owners,  and  therefore  plaintiff  was  entitled  to  recover:  Wall- 
ing V.  Miller,  15  Cal.  ?>S,. 

A  voluntary  promise  not  to  assign  is  not  binding:  Cal.  Steam  Nav. 
Co.  v.  Wright,  8  Cal.  585. 

As  to  public  lands,  the  right  to  be  protected  is  a  person's  constructive 
possession.  It  is  a  personal  right  to  one  who  complies  with  the  law; 
and  if  assignable  at  all  is  only  assignable  to  one  who  shall  actually 
rrside  upon  the  land:   Wolf  skill  v.  Malajowich,  39  Cal.  276. 

The  privilege  of  pre-emption  attaches  to  the  land,  and  is  therefore 
assignable:  Laffan  v.  Nnglee,  9  Cal.  GG2,  70  Am.  Dec.  678;  but  in  a  later 
case  it  was  said  that  the  right  to  a  pre-emption  in  public  lands  is  not 
assignable:  Whitney  v.  Buckman,  13  Cal.  536;  Norris  v.  Heald,  12  Mont. 
287,  33  Am.  St.  Rep.  581,  29  Pac.  1121;  Quinn  v.  Kenyon,  38  Cal.  499. 

After  a  pre-emptor  has  made  the  necessary  proofs,  and  paid  for  the 
land,  and  received  a  certifioatj  of  purchase,  and  before  the  patent  issues 
to  him,  he  may  make  a  valid  sale  of  the  land:  Thurston  v.  Alva,  45 
Cal.  16. 

As  to  a  soldier's  addition  homestead  right,  after  entry  is  made,  and 
before  the  patent  is  issued  he  may  sell  the  land  and  pass  a  good  title 
thereto:    Stewart  v.   Sutherland,  93  Cal.  270,  28  Pac.   947. 

A  cause  of  action  for  malicious  prosecution  is  not  assignable:  Law- 
rence V.  Martin,  22  Cal.   173. 

Independent  of  the  debt  it  is  given  to  secure,  a  mortgage  has  no 
assignable  quality.  The  assignee  of  a  mortgage,  without  an  assignment 
Ox  the  debt  for  which  it  was  given,  takes  nothing  by  the  assignment: 
Polhemus  v.  Trainer,  30  Cal.  685;  Hyde  v.  Mangan,  88  Cal.  319,  26  Pac. 
180. 

C.  contracts  with  an  owner  of  land  to  farm  land  and  for  compensa- 
tion was  to  have  one-fourth  of  the  increase  of  all  the  cattle  on  it  at  the 
end  of  five  years.  Held,  that  C.  had  no  present  interest  in  the  cattle 
nntil  the  end  of  five  years,  and  therefore  he  has  nothing  there  attach- 
able or  assignable:   Fitch  v.  Brockman,  3  Cal.  348. 

Laborers'  claims  under  mechanic's  lien  law  may  be  assigned  after 
notice  of  such  claims  is  given  as  referred  by  the  lien  law:  Mohle  v. 
Tschirch,  63  Cal.   381. 

A  right  of  action  for  the  wrongful  taking  and  conversion  of  personal 
property  is  assignable,  and  the  assignee  may  recover  in  his  own  name: 
Lazard  v.   Wheeler,  22   Cal.    139. 

Assignment  of  his  salary  by  a  public  officer  before  it  becomes  due 
is  contrary  to  public  policy  and  void:  Bangs  v.  Dunn,  66  Cal.  72,  4  Pac. 
963. 

A  demand  by  a  contractor  against  the  owner  of  a  lot  for  an  assess- 
ment on  his  lot  for  a  street  isessment  is  assignable:  Cochran  v.  Collins, 
29  Cal.  129.  The  title  to  the  assessment  remains  in  the  assignors: 
Foley  V.  Bullard,  99  Cal.  516,  33  Pac.  lOSl. 


76  New  Book  op  Forms. 

A  cause  of  action  arising  oat  of  tort  is  not  assignable:  Oliver  ▼. 
Walsh,  6  Cal.  456. 

Assignability  is  the  General  Bule. — The  exceptions  are  confined  to 
wrongs  done  to  the  person,  the  reputation,  or  the  feelings  of  the  injured 
party,  and  to  contracts  of  a  purely  personal  nature:  Eued  v.  Cooper, 
109  Cal.  (382,  34  Pae.  98. 

Burden  of  Obligation. — The  burden  of  an  obligation  may  be  assigned 
with  the  consent  of  the  party  entitled  to  its  benefits:  Anderson  v.  De 
Urioste,  96  Cal.  404,  31  Pae,  266. 

How  made — Validity. — Ad  assignment  aoes  not  release  the  assignor 
from  his  obligation  if  the  ether  contracting  party  does  not  consent: 
Cutting  Packing  Co.  v.  Packers'  Exchange,  86  Cal.  574,  21  Am.  St.  Rep. 
63,  25  Pae.  52,  10  L.  R.  A.  369. 

An  account  may  be  assigned  by  indorsement  of  the  word  "assignee" 
on  the  account,  signed  by  the  owner:  Ryan  v.  Maddux,  6  Cal.  247. 

An  order  drawn  by  a  creditor  on  his  debtor  is  an  assignment  of  the 
debt  pro  tanto,  if  accepted:  McEwen  v.  Johnson,  7  Cal.  258. 

An  order  "F.  Huth  &  Co.,  please  hold  to  the  order  of  William  Pope 
&  Sons,  of  Boston,  five  hundred  pounds  sterling  of  insurance,  effected 
on  cargo  of  bark  Eloira,  and  oblige,"  is  an  equitable  assignment  of  the 
funds  in  the  hands,  or  to  come  into  the  hands,  of  the  drawees  to  the 
payees:   Pope  v.  Huth,  14  Cal.  403. 

Indorsement  and  delivery  of  a  warrant  by  the  payee  is  an  equitable 
assignment  of  the  debt:  National  Bank  of  D.  O.  Mills  v.  Herold,  74 
Cal.  603,  5  Am.  St.  Rep.  476,  16  Pae.  507. 

A  grant  of  a  portion  of  a  tract  of  land  of  which  the  grantor  has  no 
title,  but  he  has  a  contract  of  purchase,  operates  as  an  assignment  of  a 
portion  of  "^uch  contract:   Hilton  v.  Young,  73  Cal.  196,  14  Pae.  684. 

Signing  an  assignment  without  deKvery  is  insufficient:  Ritter  v. 
Stevenson.  7  Cal.  388. 

An  assignment  of  an  account  made  to  an  attorney  for  collection  as 
a  matter  of  convenience,  without  solicitation  or  purchase  by  the  attor- 
ney, is  not  affected  by  section  161  of  Penal  Code,  which  provides  that 
an  attorney  who  directly  or  indirectly  buys,  or  is  interested  in  buying, 
any  evidence  of  debt  with  intent  to  bring  suit  thereon  is  guilty  of 
misdemeanor:  Tuller  v.  Arnold,  98  Cal.  522,  33  Pae.  445. 

It  will  not  be  assumed  because  an  attorney  brings  an  action  on  an 
assigned  claim  that  he  took  the  assignment  with  criminal  intent:  Bulke- 
ley  v.  Bank  of  California,  68  Cal.  80,  8  Pae.  643. 

Consideration  for  Assignment. — The  assignment  of  a  right  is  a  valu- 
able coTisidrration  to  support  a  promise  to  pay  its  reasonable  value 
whore  the  assignee  obtains  the  benefit  of  such  right:  McCarthy  v.  Pope, 
52  Tal.  561. 

The  assignment  of  a  contract  void  under  the  statute  of  frauds  does 
not  constitute  a  good  consideration  for  a  promise  to  pay:  Mayer  v.  Child, 
47   Cal.   142. 

Mortgage — Assign "^ent  of. —  A  mortgage  is  a  conveyance  only  in  form 
and  is  sometimes  treated  by  the  courts  as  a  conveyance,  but  it  passes 
no  estate  in  the  land  described  in  it,  and  title  to  it  passes  by  a  simple 
assignment  of  the  debt  secured  by  it:  Savings  Soc.  v.  McKoon,  120 
Cal.   177,  52  Pae.  305. 

Assignee's  Rights. — The  assignee  of  a  promissory  note  is  entitled  to 
the  security,  if  any:  Gessner  v.  Palmateer,  89  Cal.  89,  24  Pae.  608,  26 
Pae.  780,  13  L.  R.  A.  187;  Hart  v.  Wilson,  38  Cal.  263. 

Assignee  stands  in  the  fshoes  of  his  assignor;  the  assignor  cannot 
by  any  act  of  his  put  his  ass'gnee  in  any  better  position  than  he  him- 
self occupied:  Wright  v.  Levy,  12  Cal.  2.57;  Alpers  v.  Hunt,  86  Cal.  78, 
21  Am.  St.  Rep.  17,  24  Pae.  846,  9  L.  R.  A.  483. 


Assignment.  77 

An  assif^ec  of  a  contract,  in  an  action,  is  bound  by  all  the  provi- 
sions of  the  contract:  Jackson  v.  Beers,  14  Cal.  189. 

The  destruction  of  a  document  which  operates  as  an  assignment  does 
not  extinguish  the  assignee's  rights  unless  the  destruction  was  intended 
to  extinguish  such  rights:  Brock  v.  Pearson,  87  Cal.  581,  25  Pac. 
963. 

Liabilities  of  Assignee. — An  implied  contract  arises  between  the  as- 
signor ami  assignee  of  a  non-negotiahle  instrument,  whereby  the  assignee 
becomes  bound  to  the  assignor  to  perform  the  contract  according  to  its 
terms.  The  assignee  of  a  contract  for  the  purchase  and  sale  of  a  crop 
of  fruit  refused  to  accept  and  pay  for  the  crop.  Held,  that  the  as- 
signor had  a  cause  of  action  against  him  for  breach  of  the  implied 
contract:  Cutting  Packing  Co.  v.  Packers'  Exchange,  86  Cal.  574,  21 
Am.  St.  Rep.  63,  25  Pac.  52,  10  L.  R.  A.  369. 

Assign  rents  for  Collection. — An  assignment  of  a  cause  of  action  for 
ecdlection  vests  the  legal  title  in  the  assignee,  reganlless  whether  or 
not  any  consideration  was  ,iaid  therefor  by  the  assignee,  and  he  may 
sue  in  his  own  name:  Grieg  v.  Riordan,  99  Cal.  .'^16,  33  Pac.  913.  In 
such  case  the  defendant  may  urge  any  defense  which  he  could  have  in- 
terposed against  the  beneficiarj'  had  the  suit  been  brought  in  his  own 
name:  Toby  v.  Oregon  Pacific  "^R.  R.  Co.,  98  Cal.  490,  33  Pac.  550.  In 
such  transactions  the  assignors  could  not  sue  thereon  without  a  reas- 
signment:  Tuller  V.  Arnold,  ?8  Cal.  522,  33  Pac.  445. 

Action  on  Assignments. — If  a  cause  of  action  is  assigned  and  suit 
is  brought  upon  it,  the  defendant  may  make  a  setoff  or  make  any  other 
defense  that  existed  at  the  time  of  or  before  notice  of  the  assignment; 
but  this  does  not  apply  to  a  negotiable  promissory  note  or  bill  of  ex- 
change transferred  in  good  faith  and  upon  good  consideration  before 
maturity:  C.  C.  P.,  sec.  368;  and  if  the  defendant  omits  to  set  up  a  coun- 
terclaim, neither  he  nor  his  assignee  can  afterward  maintain  an  action 
against  the  plaintiff  therefor:  C.  C.  P.,  sec.  489.  It  would  seem  that 
section  439  would  .ipply  not  to  a  plaintiff  who  seeks  to  recover  upon 
an  assignment,  but  to  a  subsequent  suit  brought  by  the  assignor.  If  an 
action  is  pending  when  an  pssignment  is  made,  the  action  may  be  con- 
tinued in  the  name  of  the  original  party,  or  the  assignee  may  be  substi- 
tuted in  the  action:  C.  C.  P.,  sec.  385. 

No.    8i. — Assignment    Indorsed    upon    an    Instrument — Short 

Form. 

For  Value  Received,  I  do  hereby  transfer,  assign,  to  /.  S., 
his  heirs  and  assigns  forever,  all  my  right,  title,  and  interests,  in, 
to,  and  under  the  within  instrument. 

No.  82. — Assignment  of  Bond. 

Know  all  Men  by  These  Presents:  That  I,  A.  B.,  of,  etc. 
of  the  first  part,  for  and  in  consideration  of  the  sum  of  oyic  thou- 
sand dollars,  gold  coin  of  the  United  States  of  America,  to  me 
in  hand  paid  by  C.  D.,  of,  etc.,  of  the  second  part,  the  receipt 
whereof  is  hereby  acknowledged,  do  by  these  presents  bargain, 
sell  and  assign  unto  the  said  party  of  the  second  part,  and  as- 
signs, a  certain  written  bond  or  obligation,  and  the  condition 
thereof,  bearing  date  the  fifth  day  of  May,  one  thousand  nine 
hundred  and  tizr,  executed  by  one  B.  P.,  to  me,  the  said  A.  B., 
and  all  sum  and  sums  of  money  due,  or  to  grow  due,  thereon; 


78  New  Book  of  Forms. 

and  I  hereby  covenant  with  the  said  party  of  the  second  part, 
and  there  is  now  due  on  the  said  bond  or  obligation,  according  to 
the  condition  thereof,  for  principal  and  interest,  the  sum  of  one 
thousand  dollars,  gold  coin  of  the  United  States  of  America. 

No.  83. — Assignment  of  Partnership  Property  and  Debts  by 
One  ir'artner  to  Another  for  a  Certain  Sum. 

This  Indenture,  of  two  parts,  made  and  concluded  this  sec- 
ond day  of  June,  1^04,  by  and  between  G.  B.,  of  Oakland,  Ala- 
meda County,  printer,  of  the  first  part,  and  /.  S.,  of  the  same 
place,  printer,  of  the  second  part,  witnesseth : 

That,  whereas,  the  said  parties  were  lately  copartners  in  the 
business  of  printing,  which  partnership  was  dissolved  and  deter- 
mined on  the  said  second  day  of  June ;  and  whereas,  many  debts 
due  and  owing  to  the  said  parties  on  account  of  their  said  co- 
partnership are  still  outstanding,  and  debts  due  by  the  said  firm 
are  yet  unpaid ;  and  whereas,  it  is  agreed  that  the  said  party  of 
the  second  part  shall  assign  and  release  to  the  said  party  of  the 
first  part  all  his  interest  in  the  stock  in  trade,  goods,  and  effects 
belonging  to  the  said  firm,  and  in  the  debts  now  owing  to  the 
said  firm,  and  that  the  said  party  of  the  first  part  shall  assume 
all  the  debts  and  liabilities  of  the  said  firm,  and  shall  discharge 
and  indemnify  the  said  party  of  the  second  part  from  all  liabili- 
ties and  losses  arising  from  the  said  partnership : 

Now,  therefore,  in  pursuance  of  the  said  agreement,  and  in 
consideration  of  the  sum  of  one  hundred  dollars,  paid  and  se- 
cured to  the  said  G.  B.,  he,  the  said  G.  B.,  doth  hereby  assign 
to  the  said  /.  vS".,  all  his  right,  title,  interest,  in  and  to  all  stock  in 
trade,  goods,  merchandise,  machinery,  tools,  books,  leasehold 
premises,  and  effects  belonging  to  the  said  partnership,  of  what- 
eyer  kind  or  nature  and  wheresoever  situated ;  also,  all  his  right, 
title,  and  interest  in  and  to  all  the  debts  of  money  now  due  and 
owing  to  the  said  firm,  whether  the  same  be  by  bond,  bill,  note 
or  account,  or  otherwise ;  and  the  said  G.  B.  doth  hereby  make 
and  appoint  the  said  /.  S.,  his  executors,  administrators,  and 
assigns  his  attorney  in  fact  to  receive  all  and  several  the  debts 
and  sums  of  money  above  mentioned  to  his  and  their  own  use 
and  benefit ;  and  doth  hereby  authorize  the  said  7.  S.,  his  execu- 
tors, etc.,  to  demand,  collect  and  sue  for  the  said  debts  and  sums 
of  money,  and  to  use  his,  the  said  G.  B.'s,  name  in  any  way  or 
manner  that  the  collection,  recovery,  and  realization  of  the  said 
debts  and  demands  may  render  necessary,  as  well  in  court  as  out 
of  court,  but  at  their  own  proper  costs  and  charges,  and  without 
cost  or  damage  to  the  said  G.  B.  And  the  said  G.  B.  doth  hereby 
further  authorize  the  said  /.  S.  to  convey  and  transfer  to  his  own 
name,  and  for  his  own  use  and  benefit,  any  and  all  sums  of  money 
and  effects,  real  and  personal  estate,  which  may  be  taken  or  re- 
ceived in  the  name  of  the  said  firm,  and  to  hold  the  same  free 


Assignment.  79 

from  all  claims  of  the  said  G.  B.,  his  executors,  administrators, 
or  assigns. 

And  these  presents  further  witness,  that,  in  pursuance  of  the 
said  agreement,  and  the  said  /.  S.,  for  himself,  his  executors  and 
administrators,  doth  hereby  covenant  to  and  with  the  said  G.  B., 
his  executors  and  administrators,  that  he,  the  said  /.  S.,  and  his, 
etc.,  shall  pav  and  discharge,  and  at  all  times  hereafter  save 
harmless  and  indemnify  the  said  G.  B.,  his  etc.,  from  and  against 
all  and  every  the  debts,  duties,  and  liabilities,  which,  at  the  dis- 
solution and'  termination  of  the  said  partnership,  were  due  and 
owing  bv  the  said  firm  to  any  person  or  persons  for  any  matter 
or  thing  touching  the  said  partnership,  and  of  and  from  all  ac- 
tions, suits,  costs,  expenses,  and  damages  for  or  concerning  the 
said  debts,  duties,  and  liabilities,  unless  the  said  G.  B.,  shall  have 
contracted  anv  debts  or  incurred  any  liabilities,  in  the  name  and 
on  account  of  the  said  firm,  which  are  unknown  to  the  said  /.  S., 
and  do  not  appear  in  the  books  of  the  said  firm;  for  which,  if 
any  such  exists,  the  said  /.  S.  does  not  hereby  intend  to  make 
himself  responsible. 

No.  84. — Assignment  of  Debt. 

Know  A'Lh  ^lEx  r.v  these  Presents:  That  I,  A.  L.,  of,  etc., 
for  and  in  consideration  of  the  sum  of  one  hundred  dollars,  to 
me  pafd  by  A.  P.,  of,  etc.,  the  receipt  whereof  is  hereby  acknowl- 
edged, have  sold,  and  by  these  presents  do  sell,  assign,  transfer, 
and  set  over,  unto  the  said  A.  P.,  a  certain  debt  due  me  from  O. 
L.,  amounting  to  the  sum  of  one  hundred  dollars,  for  goods  sold 
and  delivered  [or,  zvork,  labor,  and  sen'ices],  with  full  power 
to  sue  for,  collect,  and  discharge,  or  sell  and  assign  the  same. 
And  I  hereby  covenant,  that  the  said  sum  of  one  hundred  dollars 
is  justly  due  as  aforesaid. 

No.  85. — Assignment  of  Contract  for  Sale  of  Real  Estate. 

Know  .all  Men  by  these  Presents:  That  I,  A.  B.,  etc.,  for 
and  in  consideration  of  the  sum  of  iifty  dollars,  gold  coin  of  the 
United  States,  to  me  paid  by  C.  D.,  of,  etc.,  do,  by  these  presents, 
sell,  transfer,  assign,  and  set  over  unto  the  said  C.  D.,  a  contract 
for  the  sale  of  certain  real  estate,  described  as  follows,  to  wit : 

[Description.] 
which  said  contract  was  made  and  executed  by  E.  F.,  of,  etc.,  to 
the  said  A.  B..  and  bears  date  the  sixth  day  of  May.  1904,  to 
have  and  to  hold  the  same  unto  the  said  C.  D.,  his  heirs,  execu- 
tors, administrators,  and  assigns;  subject,  nevertheless,  to  the 
covenants,  conditions,  and  payments  therein  mentioned.  And  I 
hereby  fully  authorize  and  empower  the  said  C.  D.,  upon  his  per- 
formance of  the  said  covenants  and  conditions,  to  demand  and 


8o  New  Book  of  Forms. 

receive  of  the  said  £.  F.,  the  deed  covenanted  to  be  given  in  the 
said  contract,  in  the  same  manner,  to  all  intents  and  purposes,  as 
I  myself  might  or  could  do,  were  these  presents  not  executed. 

No.    86. — Assignment    of    Copyright. 

This  Indenture,  made  this  twenty-third  day  of  April,  igo^, 
between  C.  R.,  of  Brooklyn,  State  of  New  York,  of  the  first  part, 
and  G.  A.,  of  the   City  and  State  of  New  York,  of  the  second  part. 

Whereas,  the  said  C.  R.  has  written  and  composed  a  book,  en- 
titled "T.  L.  of  the  F."; 

Now  this  indenture  witnesseth,  that  said  C.  R.,  for  and  in  con- 
sideration of  the  sum  of  five  hundred  dollars,  to  him  in  hand  paid 
by  said  G.  A.,  the  receipt  of  which  is  hereby  acknowledged,  does 
by  these  presents,  bargain,  sell,  and  assign  unto  the  said  G.  A., 
his  heirs,  executors,  administrators,  and  assigns,  all  the  said  book, 
and  the  manuscript  thereof,  and  all  his  right,  title,  and  interest, 
property,  claim  and  demand,  of  every  kind  and  nature  whatso- 
ever, of,  in,  and  to  the  same,  and  in  any  and  all  copyrights,  and 
any  and  all  renewals  thereof,  which  may  or  can  be  had,  or  secured, 
or  taken,  in  respect  to  said  book  or  manuscript,  under  and  by 
virtue  of  any  acts  of  Congress,  with  any  and  all  profit,  benefit, 
and  advantage  that  shall  or  may  arise  by  or  from  printing,  pub- 
lishing or  vending  the  same  during  the  original  and  renev/ed 
terms  of  any  such  copyright.  To  have  and  to  hold  the  same  to 
the  said  G.  A.,  his  heirs,  executors,  administrators,  and  assigns 
forever. 

And  the  said  C.  R.  agrees  to  examine  and  correct  the  proof- 
sheets  of  said  work,  as  fast  as  they  shall  be  furnished,  and  to  make 
and  complete  a  full  and  correct  index  therefor,  immediately  af- 
ter all  the  signatures  of  the  text  shall  be  furnished  for  that  pur- 
pose. 

And  the  said  G.  A.,  for  himself,  his  heirs,  executors,  adminis- 
trators, and  assigns,  covenants  and  agrees  to  furnish  and  deliver 
free  of  cost,  to  said  C.  R.,  twenty-five  bound  copies  of  said  woik, 
within  three  months  after  the  said  index  shall  be  completed. 

No.  87. — Assignment  of  Seamen's  Wages. 

Know  all  Men  :  That  I,  A.  C.,  for  and  in  consideration  of  the 
sum  of  five  dollars,  in  which  I  am  justly  indebted  to  C.  €.,  of, 
etc.,  have  hereby  assigned,  sold,  and  set  over,  and  by  these  pres- 
ents I  do  hereby  assign,  sell,  and  set  over,  unto  the  said  C.  C.,  all 
sums  of  money  as  are  now  due  and  owing  to  me,  the  said  A.  C., 
for  wages  or  services  on  board  the  ship  or  vessel  called  the  C.  L., 
from  the  master  or  owner  of  said  vessel,  on  board  of  which  vessel 
I  served  as  a  mariner  on  her  voyage  from  0.  to  P.,  which  has  re- 
cently terminated,  with  full  power  to  prosecute  the  said  vessel, 
her  tackle,  apparel,  and  furniture,  freight,  cargo,  and  any  and  all 
persons  liable  therefor,  and  receive  and  recover  the  same,  and 
give  discharges  therefor. 


Assignment.  8i 

[Add  covenants  that  A.  B.  has  not  released,  and  that  he  will 
give  further  assurances.] 

No.  88. — Assignment  by  an  Insolvent  Debtor. 

This  Indenture,  made  the  sixth  day  of  May,  nineteen  hun- 
dred and  five,  by  and  between  B.  C,  of  M.,  merchant,  of  the  first 
part,  /.  S.,  of  0.,  of  the  second  part,  and  the  several  persons  cred- 
itors of  the  said  party  of  the  first  part,  of  the  third  part,  witness- 
eth : 

That  whereas,  the  party  of  the  first  part  is  indebted  to  divers 
persons  in  considerable  sums  of  money,  which  he  is  at  present 
unable  to  pay  in  full,  and  he  is  desirous  to  convey  all  his  prop- 
erty for  the  benefit  of  all  his  creditors,  without  any  preference  or 
priority  other  than  that  provided  by  law. 

Now,  the  party  of  the  first  part,  in  consideration  of  the  ]" rem- 
ises, and  of  one  dollar  paid  to  him  by  tl-.e  party  of  the  second 
part,  hereby  grants,  bargains,  sells,  assigns,  and  conveys  unto  the 
party  of  the  second  part,  and  his  heirs  and  assigns,  all  his  lands, 
tenements,  hereditaments,  goods,  chattels,  property,  and  choses 
in  action,  of  every  name  and  nature  and  description,  wheresoever 
the  same  may  be,  except  such  property  only  as  is  exempted  by 
law  from  attachment  and  execution,  as  fully  described  and  set 
forth  in  the  schedule  hereto  annexed  and  made  a  part  of  this 
assignment. 

To  have  and  to  hold  the  said  premises  unto  the  said  party  of 
the  second  part,  and  his  heirs  and  assigns : 

But  in  trust  and  confidence  nevertheless  to  sell  and  dispose  of 
the  said  real  and  personal  estate,  and  to  collect  the  said  choses  in 
action,  using  a  reasonable  discretion  as  to  the  times  and  modes  of 
selling  and  disposing  of  said  estate,  as  it  respects  making  sales 
for  cash  or  on  credit,  at  public  auction  or  by  private  contract,  and 
w^ith  the  right  to  compound  for  the  said  choses  in  action,  taking 
a  part  for  the  whole,  where  tlie  trustee  shall  deem  it  expedient  so 
to  do ;  then  in  trust  to  dispose  of  the  proceeds  of  the  said  prop 
erty  in  the  manner  following,  viz. : 

I  St.  To  pay  all  such  debts  as  bv  the  laws  of  the  United  States 
or  of  this  State  are  entitled  to  a  preference  in  such  cases. 

2d.  To  pay  the  costs  and  charges  of  these  presents,  and  the 
expenses  of    executing  the  trusts  declared  in  these  presents. 

No.  89. — Assigrunent — General. 

Know  aix  Men  :  That  for  the  consideration  of  one  dollar  to 
me  in  hand  paid,  and  for  other  valuable  considerations,  I  liereoy 
assign  to  H.  S.  all  the  personal  property  I  own  or  am  interested 
in  at  this  date  in  the  State  of  California. 
New  Forms — 6 


82  New  Book  of  Forms. 

No.  go. — Assignment  of  Stock. 
For  and  in  consideration  of  the  sum  of  ten  thoxcsand  dollars 
to  me  in  hand  paid,  I  hereby  assign  and  sell  to  A.  H.  three 
shares  of  stock  of  the  "B.  M.  A.,"  of  the  denomination  of  one 
thousand  dollars  each,  and  being  shares  numbered  respectively, 
27,  and  now  standing  in  my  name  on  the  books  of  said  company. 
And  I  do  guarantee,  that  all  assessments  to  date  are  paid  upon 
said  shares  and  each  of  them,  and  I  authorize  the  secretary,  or 
other  proper  officer  of  said  company,  to  enter  this  transfer  upon 
the  books  of  said  company,  showing  that  I  have  this  day  trans- 
ferred to  said  A.  H.  the  said  three  shares  of  stock  of  the  numbers 
and  designation  above  mentioned. 

No.  91. — Assignment  of  Account  Indorsed  Thereon. 

In  consideration  of  one  dollar,  value  received,  I  hereby  sell  and 
assign  to  F.  O.  the  within  account,  which  is  justly  due  from  the 
within  named  H.  A.,  and  I  hereby  authorize  the  said  F.  0.  to 
collect  the  same. 

No.  92. — Assignment  of  Policy  of  Insurance. 

Know  all  Men  by  these  Presents:  That  I,  P.  L.,  of,  etc., 
in  the  annexed  policy  named,  for  and  in  consideration  of  the 
sum  of  one  Jiundred  dollars  to  me  in  hand  paid  by  P.  C,  of,  etc., 
the  receipt  whereof  is  hereby  acknowledged,  have  sold,  assigned, 
transferred,  and  set  over,  and  by  these  presents  do  sell,  assign, 
transfer,  and  set  over,  unto  the  said  P.  C.  the  annexed  policy  of 
insurance,  and  all  sum  and  sums  of  money,  interest,  benefit,  and 
advantage  whatsoever,  now  due  or  hereafter  to  arise,  or  to  be 
had  or  made  by  virtue  thereof ;  to  have  and  to  hold  the  same  unto 
the  said  P.  C.  and  assigns  forever. 

The  above  assignment  is  approved. 

No.   93. — Assignment   of   Policy   as   Security. 

Know  all  Men,  etc.,  [as  in  the  foregoing  to  the  end,  and  then 
add:]  upon  the  condition,  however,  that  if  a  certain  promissory 
note  for  the  sum  of  one  thousand  dollars,  bearing  date  the  sev- 
enth day  of  August,  igo6,  given  by  the  said  P.  L.  to  the  said  P. 
C,  is  well  and  truly  paid,  according  to  the  terms  thereof,  then 
this  assignment  is  to  be  void  [adding  the  approval  in  the  forego- 
ing if  necessary]. 

No.  94. — Assignment  of  Lease. 

Know  all  Men  by  these  Presents:  That  I,  B.  R.,  of  the 
Town  of  Red  Bluff,  County  of  Tehama,  and  State  of  California, 


Assignment.  83 

for  and  in  consideration  of  the  sum  of  ei^ht  hundred  and  fifty- 
nine  dollars  and  /ifty  cents,  gold  coin  of  the  United  States  of 
America,  to  me  in  hand  paid  by  /.  H.,  of  the  said  Tozvn  and 
County  of  Tehama,  and  State  aforesaid,  do  by  these  presents  sell, 
convey,  assign,  transfer,  and  set  over  unto  the  said  /.  H.,  a  certain 
indenture  of  lease,  bearing  date  the  fifteenth  day  of  August,  one 
thousand  nine  hundred  and  six,  made  by  O.  C.  of  the  City  and 
County  of  San  Francisco,  and  State  aforesaid,  to  me,  the  said  B. 
F.,  of  a  certain  dzvelling-house  and  lot,  situate,  lying,  and  being 
in  the  said  Town  of  Red  Bluff,  County  of  Tehama,  bounded  and 
described  as  follows,  to  wit : 

[Description.] 
for  the  term  of  four  years  and  six  months,  reserving  unto  the 
said  0.  C,  the  monthly  rent  of  thirty-seven  dollars  and  fifty  cents, 
payable  monthly,  on  the  fifteenth  day  of  each  month,  in  advance, 
with  all  and  singular  the  premises  therein  mentioned  and  de- 
scribed, and  the  buildings  thereon,  together  with  the  appurte- 
nances. 

To  have  and  to  hold  the  same  unto  the  said  /.  H.,  his  heirs, 
executors,  administrators,  and  assigns,  from  the  fifteenth  day  of 
November,  one  thousand  nine  hundred  and  six,  for  and  during 
all  the  remainder  yet  to  come  of  the  said  term  of  four  years  and 
six  months,  mentioned  in  said  indenture  of  lease.  And  I  do 
hereby  covenant  and  agree  to  and  with  the  said  /.  //.,  that  the 
said  assigned  premises  now  are  free  and  clear  of  and  from  all 
former  and  other  gifts,  grants,  bargains,  sales,  leases,  judgments, 
exeaitions ;  back  rents,  taxes,  assessments,  and  encumbrances, 
by  me  sufiFered,  made  or  created. 

No.  95, — Assignment  of  Lease  by  Indorsement. 

For  V.'\luE  ReciCived,  I  do  by  these  presents  bargain,  sell, 
assign,  and  set  over  unto  the  said  C.  D.,  his  heirs  and  assigns,  the 
within  written  indenture  of  lease,  and  all  my  estate,  right,  title, 
interest,  claim,  property,  and  demand  of,  in,  and  to  the  lands, 
tenements,  hereditaments,  and  premises  therein  mentioned, 
which  I  now  have,  by  means  of  the  said  indenture,  or  otherwise; 
subject,  nevertheless,  to  the  rents  and  covenants  in  the  said  in- 
denture contained. 

No.    96. — Assignment    of    Mortgage. 

Know  all  Men  by  these  Presents:  That  /.  H.,  of  the  Tozim 
of  Colusa,  County  of  Colusa,  State  of  California,  the  party  of 
the  first  part,  for  and  in  consideration  of  the  sum  of  one  thou- 
sand five  hundred  dollars,  laivful  money  of  the  United  States 
of  America,  to  him  in  hand  paid  by  H.  JV.,  of  Grand  Island, 
coitntv  aforesaid,  party  of  the  second  part,  the  receipt  whereof 


84  New  Book  o?  Forms. 

is  hereby  acknowledged,  does  by  these  presents  assign  and  trans- 
fer unto  the  said  party  of  the  second  part,  a  certain  indenture  of 
mortgage  bearing  date  the  nineteenth  day  of  May,  one  thousand 
nine  hundred  and  Hve,  made  and  executed  by  /.  S.  and  J.  S.,  his 
tunfe,  to  the  said  party  of  the  first  part,  and  recorded  in  the  oMce 
of  the  County  Recorder  of  the  said  County  of  Colusa,  State  of 
California,  in  Liber  5  of  Mortgages,  page  279,  on  the  said  nine- 
teenth day  of  May,  ipoj,  at  ten  (10)  minutes  past  5  o'clock  P.  M. 

Together  with  the  promissory  note  therein  described,  and  the 
money  due  and    to  grow  thereon,  with  the  interest. 

And  the  said  party  of  the  first  part  does  hereby  make,  con- 
stitute, and  appoint  the  said  party  of  the  second  part  his  attorney 
in  fact,  irrevocable,  in  his  name  or  otherwise,  but  at  the  costs  of 
the  said  party  of  the  second  part,  to  have,  use,  and  take  all  law- 
ful means  for  the  recovery  of  the  said  money  and  interest;  and 
in  case  of  payment  to  discharge  the  same  as  fully  as  the  said 
party  of  the  first  part  might  or  could  do  if  these  presents  were  not 
made. 

No.  97. — Assignment  of  Mortgage  with  Covenant. 

Know  ai,l  Men  by  these  Presents:  That  /.  M.,  of  Eureka, 
County  of  Humboldt,  State  of  California,  the  party  of  the  first 
part,  for  and  in  consideration  of  the  sum  of  tive  hundred  and  fifty- 
six  dollars,  lawful  money  of  the  United  States  of  America,  to 
him  in  hand  paid  by  G.  W.,  of  said  Town  of  Eureka,  State  and 
County  aforesaid,  the  party  of  the  second  part,  the  receipt  of 
which  is  hereby  acknowledged,  has  granted,  bargained,  sold,  as- 
signed, transferred,  and  set  over,  and  by  these  presents  does  as- 
sign and  transfer  unto  the  said  party  of  the  second  part,  a  cer- 
tain indenture  of  mortgage,  bearing  date  the  nineteenth  day  of 
May,  one  thousand  nine  hundred  and  five,  made  and  executed 
by  /.  B.,  of  said  Town  of  Eureka,  to  the  said  party  of  the  first 
part  to  secure  the  payment  of  the  sum  of  five  hundred  and  sixty- 
three  dollars  and  ninety  cents,  gold  coin  of  the  United  States,  to- 
gether with  the  promissory  note  or  obligation  therein  described, 
and  the  money  due,  or  to  grow  due  thereon,  with  the  interest ; 
which  said  indenture  of  mortgage  was  recorded  in  the  office  of 
the  County  Recorder  of  the  said  County  of  Humboldt,  State  of 
California,  in  Book  16  of  Mortgages,  page  196,  on  the  twenty- 
fourth  day  of  May,  1905. 

[Here  insert  Assignment,  if  any.] 

To  have  and  to  hold  the  same  unto  the  said  party  of  the  second 
part,  his  executors,  administrators,  and  assigns,  for  his  or  their 
use  and  benefit;  subject  only  to  the  proviso  in  the  said  indenture 
of  mortgage  mentioned.  And  the  said  party  of  the  first  part 
does  hereby  make,  constitute,  and  appoint  the  said  party  of  tlie 
second  part  his  true  and  lawful  attorney  in  fact,  irrevocable,  in 


Assignment.  85 

his  name  or  otherwise,  but  at  the  proper  cost  of  the  said  p^rty 
of  the  second  part,  to  have,  use,  and  take  all  lawful  ways  and 
means  for  the  recovery  of  the  said  money  and  interest ;  and  in 
case  of  payment  to  discharge  the  same  as  fully  as  the  said  party 
of  the  first  part  might  or  could  do  if  these  presents  were  not  made. 
And  the  said  party  of  the  first  part  does  hereby  covenant  to 
and  with  the  said  party  of  the  second  part,  that  the  said  party  of 
the  first  part  is  the  lawful  owner  and  holder  of  the  said  prom- 
issory note  and  mortgage,  and  that  he  has  good  right  to  sell, 
transfer,  and  assign  the  same  as  aforesaid,  and  that  there  is  now- 
due  and  owing  upon  the  said  promissory  note  and  mortgage,  in 
gold  coin  of  the  United  States,  the  sum  of  six  hundred  and  sez-en 
dollars  and  eighty-four  cents,  with  interest  from  the  nineteenth 
day  of  October,  one  thousand  nine  hundred  and  five. 

No.   98. — The   Same,   Indorsed  on   Mortgage. 

For  value  received,  I  do  hereby  sell,  assign,  transfer,  and  set 
over,  unto  /.  W.,  the  within  indenture  of  mortgage,  together  with 
the  note  accompanying  the  same.    * 

No.  gg. — Assignment  of  Bond  and  Mortgage. 

This  Indenture,  etc-,  [as  in  the  forms  preceding,  then  add:] 
But  this  indenture  [or  this  assignment]  is  nevertheless  made 
upon  this  express  condition,  that  if  the  said  A.  B.,  his  heirs,  ex- 
ecutors, or  administrators,  shall  well  and  truly  pay,  or  cause  to 
be  paid,  unto  the  said  A.  L.,  his  heirs,  executors,  administrators, 
or  assigns,  the  sum  of  otie  tliousand  dollars,  on  or  before  the 
seventh  day  of  June,  1^04,  with  legal  interest  from  the  date  here- 
of, this  indenture  [or,  this  assignment]  shall  be  void  and  of  no 
tfifect ;  it  being  made  for  the  purpose  of  securing  the  payment 
of  the  said  sum  of  que  thousand  dollars,  with  interest,  as  afore- 
said, and  for  no  other  purpose  whatever.  And  in  case  the  said 
A.  L.,  his  heirs,  executors,  administrators,  or  assigns,  shall  col- 
lect and  receive  the  money  due  on  said  mortgage  hereby  as- 
signed, he  or  they  shall,  after  retaining  the  sum  of  one  thousand 
dollars  with  the  interest  thereon,  and  his  or  their  reasonable  costs 
and  charges  in  that  bchnlf  expended,  pay  the  surplus,  if  any  there 
be,  to  the  said  A.  B.,  his  heirs,  executors,  administrators,  or  as- 
signs. 

No.    100. — Assignment   of   Judgment. 

Know  all  Men  by  These  Presents:  That  G.  H.,  of  Red- 
wood City,  County  of  San  Mateo,  the  party  of  the  first  part,  in 
consideration  of  the  sum  of  two  thousand  five  hundred  dollars, 
gold  coin  of  the  United  States  of  America,  to  him  in  hand  paid, 
bv  C.  L.,  of  Redwood  City,  in  said  County.  State  of  California, 
the  party  of  the  second  part,  the  receipt  whereof  is  hereby  ac- 


86  New  Book  op  Forms. 

knowledged,  has  sold  and  assigned  unto  the  said  party  of  the 
second  part,  and  his  assigns,  a  certain  judgment,  recovered  by 
the  said  party  of  the  first  part,  on  the  ninth  day  of  August,  in 
the  year  of  our  Lord  one  thousand  nine  hundred  and  four,  in  the 
Superior  Court  of  the  said  County  of  San  Mateo,  State  of  Cali- 
fornia, against  S.  S.  and  A.  J.,  for  the  sum  of  three  thousand  two 
hundred  dollars,  gold  coin  of  the  United  States  of  America,  and 
sixty-scz'cn  dollars  and  fifty  cents,  cost  of  suit,  and  all  sums  of 
money  that  may  be  had  or  obtained  by  means  of  said  judgment, 
or  on  any  proceedings  to  be  had  thereupon.  And  the  said  party 
of  the  first  part  does  hereby  appoint  the  said  party  of  the  second 
part,  and  his  assigns,  his  true  and  lawful  attorney  irrevocable, 
with  power  of  substitution  and  revocation,  for  the  use  and  at  the 
proper  costs  and  charges  of  the  said  party  of  the  second  part,  to 
demand  and  receive  the  said  money,  and  to  take  out  executions, 
and  take  in  my  name,  or  otherwise,  all  lawful  ways  and  means 
for  the  recovery  of  the  money  due  or  to  become  due  on  the  said 
judgment ;  and  on  payment  to  acknowledge  satisfaction  or  dis- 
charge the  same.  And  the  said  party  of  the  first  part  does  cove- 
nant that  he  will  not  collect  or  receive  the  same,  or  any  part 
thereof,  nor  release  or  discharge  the  said  judgment,  but  will  al- 
low all  lawful  proceedings  therein,  the  said  party  of  the  second 
part  saving  the  said  party  of  the  first  part  harmless  of  and  from 
any  costs  in  the  premises. 

No.  loi. — Assignment  of  Judgment — Another  Form. 

In  the  Superior  Court  of  the  County  of  Sacramento,    State  of 

California. 
In  consideration  of  fifty  dollars,  gold  coin  of  the  United  States, 
to  me  paid,  I  do  hereby  sell,  assign,  and  transfer  to  C.  D.  the 
judgment  above  mentioned,  for  his  use  and  benefit;  hereby  au- 
thorizing him  to  collect  and  enforce  payment  thereof,  in  my  name 
or  otherwise,  but  at  his  own  costs  and  charges. 

No.    102. — Assignment  by   Debtor   to   Sheriff   for   Benefit   of 

Creditors. 

This  Indenture,  made  this  third  day  of  October,  in  the  year 
of  our  Lord  one  thousand  nine  hundred  and  five,  by  and  between 
H.  S.,  of  the  City  and  County  of  .San  Francisco,  State  of  Cali- 
fornia, and  /.  J.,  as  sheriff  of  the  City  and  County  of  San  Fran- 
cisco, State  of  California,  witnesseth : 

That  whereas,  the  said  H.  S.  is  at  present  unable  to  pay  his 
debts  from  his  own  means,  as  they  become  due,  and  he  is  insolvent 
and  is  desirous  of  availing  himself  of  the  provisions  of  Division 
IV,  Title  III,  Part  II,  of  the  Civil  Code  of  the  State  of  Califor- 
nia : 

Now,  therefore,  in  consideration  of  the  premises,  and  in  ac- 
cordance with  the  law  in  such  cases  made  and  provided,  the  said 


Assignment.  87 

//.  S.  docs  hereby  grant,  transfer,  assign  and  set  over  unto  the 
said  Sheriff,  his  successors  or  assigns,  all  and  singular  the  real 
and  personal  property  of  every  kind  and  description,  and  where- 
soever situated,  of  which  he  is  the  ow  ner  or  possessed  of,  or  en- 
titled to  the  possession  of  or  interested  in,  in  any  manner. 

To  have  and  to  hold  the  same  for  the  satisfaction  of  his  cred- 
itors, in  accordance  with  the  provisions  of  the  law  in  such  cases 
made  and   provided. 

The  following  is  a  list  of  the  names  of  the  creditors  of  said 
H.  S.,  with  their  places  of  residence,  and  the  amounts  of  tJieir 
respective  demands : 

NAMES.  PLACE   OF   RESIDENCE.  AMOUNT. 

^.  /.  Fresno,  Fresno  County,  Col.  $3fi7^-^3 

[Must  be  signed,  acknowledged,  and  delivered.] 

NOTE. — In  California,  a  debtor  is  insolvent  when  he  is  unable  to 
pay  his  debts  from  his  own  means  as  they  become  due:  C.  C,  sec. 
3450.  He  may  make  assignment  for  the  benefit  of  creditors.  He  must 
give  a  list  of  his  creditors,  their  residence  and  claims.  The  assign- 
ment is  to  the  sheriff  of  the  county  of  his  residence,  if  he  resides  in 
the  state.  If  he  resides  out  of  the  state,  then  to  the  sheriff  of  the 
county  where  the  property  assigned,  or  some  of  it,  is  situated.  The 
sheriff  then  takes  possession  of  the  property.  As  soon  as  the  assign- 
ment is  made  the  sheriff  must,  by  mail,  notify  the  creditors  named  to 
meet  at  his  office  on  a  day  and  hour  not  less  than  eight  nor  more  than 
ten  days  from  the  date  of  the  delivery  of  the  assignment  to  him,  to 
elect  one  or  more  assignees,  as  they  may  elect  in  the  place  of  the  sheriff. 
The  practice  under  the  law  falls  naturally  into  the  hands  of  those  who 
know  how  to  do  things,  and  they  make  the  time  for  the  creditors  to 
choose  an  assignee  as  short  as  possible,  so  that  the  local  creditors  at 
th  county  seat  (where  the  sheriff  resides)  may  be  manipulated  and 
stimulated  by  the  sheriff  and  his  attorney,  to  con'tinue  him  (the  sheriff) 
as  assignee,  in  preference  to  creditors  (foreign  to  the  sheriff's  residence) 
who  might  themselves  desire  a  voice  in  the  selection.  The  notice  so 
mailed  must  describe  the  amount  of  the  creditor's  demand  as  it  appears 
in  the  assignment.  At  the  creditors'  meeting  the  sheriff  presides,  and  a 
majority  in  amount  of  demands  controls.  Proxies  are  allowed,  but 
they  must  be  acknowledged.  Any  number  of  assignees  may  be  elected, 
and  when  elected  the  sheriff  shall  assign  to  them  all  he  took  under  the 
debtor's  assignment.  Before  making  assignment,  the  sheriff  shall  be 
paid  the  same  fees  he  would  have  been  entitled  to,  provided,  instead  of 
under  the  assignment,  he  had  taken  the  property  of  the  debtor  under 
nttachmrnt.  The  practical  working  of  the  provision  is  that  in  the 
large  cities,  at  the  first  meeting  of  creditors  a  motion  is  made  to  ad- 
journ, and  it  is  adjourned  from  day  to  day,  so  that  the  sheriff's  fees 
including  keeper's  and  attorney's  charges,  mahc  such  a  hole  in  the 
estate  that  the  creditors  often  vote  the  sheriff  in  as  permanent  assio-nee 
rather  than  risk  a  change  and  a  second  payment  of  the  same  fecs^to  a 
new  lot  of  officers. 

A  person  residing  in  another  state  cannot  make  an  assignment  of 
his  property  in  this  state,  except  as  is  by  the  California  statutes  pro- 
vided; but  a  person  may,  notwithstanding  the  statute,  assign  all  lus 
property  in  this  state  for  the  benefit  of  any  one  or  more  creditors. 


88  New  Book  of  Forms. 

Assignments  may  provide  for  the  payment  of  a  subsisting  liability 
of  the   eroilitor,   whether   absolute   or   contingent. 

An  assignment  is  void  against  a  creditor  not  consenting,  when  a 
preference  is  given   of  one  class   of   debts  over  another; 

If  it  tends  to  coerce  a  creditor; 

If  it  provides  for  the  payment  of  a  false  or  fraudulent  claim,  or 
for  the   payment   of  more   than   is   due; 

If  it  reserves  to  the  assignor  any  interest  in  the  assigned  property 
before  all  his  debts  are  paid; 

If  it  confers  on  the  assignee  any  power,  which  if  exercised  might 
delay  the  immediate  conversion  of  the  assigned  property  for  the  pur- 
poses of  the  trust. 

An  assignment  must  be  in  writing,  subscribed  by  the  assignor  or  by 
h.s  agent,  authorized  in  writing,  and  the  transfer  by  the  sheriff  must 
be  in  writing,  signed  by  him  in  his  official  capacity.  It  must  be  ac- 
knowledged, etc.,  the  same  as  transfers  of  land,  and  recorded  the  same; 
and,  unless  the  law  is  complied  with,  all  assignments  are  void  as  to  all 
creditors  who   do  not  assent. 

Within  twenty  days  after  assignment  the  assignor  must  make  and 
file  an  inventory,  showing  all  his  creditors,  their  residences,  the  sum 
due  each  and  its  nature,  the  true  consideration  of  each  liability,  and 
the  place  wnere  it  arose,  every  judgment  and  security  for  each  debt, 
all  the  assignor's  property  exempt  from  execution,  and  all  his  other 
property  of  every  kind  and  description,  and  where  situated,  and  the 
value,   to   his  best  knowledge. 

The  assignor  must  make  and  file  an  affidavit,  and  annex  it  to  his 
inventory,  that  the  same  is  tnie.  If  the  affidavit  or  inventory  is  not 
filed  by  the  assignor,  the  proceedings  for  that  reason  are  not  invali- 
dated, but  the  assignee  must,  within  twenty  days,  file  an  inventory  of 
the  property  received  by  him,  and  the  assignor  may  be  cited  before  the 
court  to  be  examined  as  to  all  his  transactions;  and  the  court  may 
make  any  order  necessary  to   carry  out  the  provisions  of  the  statute. 

The  assignment  must  be  recorded,  and  if  not  it  is  void  as  against 
creditors  in  good  faith,  and  unless  the  inventory  is  filed  within  the  time 
as  aforesaid. 

When  the  sheriff  is  assignee,  his  official  bond  is  sufficient,  but  other 
assignees  must  give  a  bond  to  the  state,  the  amount  to  be  fixed  by  the 
court,  within  forty  days  from  appointment.  The  bond  is  to  be  filed 
the  same  as  other  bonds,  and  a  failure  to  give  it  forfeits  the  appoint- 
ment, and  a  creditor  may  petition  the  court  to  have  him  removed. 
When  so  removed  his  successor  is  appointed  by  the  court  as  permanent 
assignee.  The  assignee  is  allowed  the  same  fees  and  commissions  that 
assignees  in  insolvency  matters  are  allowed,  and  "all  necessary  ex- 
penses" in  the  management  of  the  estate. 

Until  the  assignee  qualifies  and  the  inventory  has  been  filed,  he  has 
no  authority  to  dispose  of  the  property  of  the  estate,  except  he  may 
dispose  of  perishable  property.  Within  ten  days  after  filing  his  bond 
he  must  publish  a  notice  to  creditors  to  present  claims  under  oath,  and 
within  ten  days  from  the  first  publication  shall  mail  a  copy  of  such 
notice  to  each  creditor.  The  notice  is  filed  in  court,  and  then,  after 
thirty  days,  the  assignee  commences  to  pay  dividends  as  fast  as  funds 
are   received. 

After  six  months  from  his  appointment  the  assignee  may  be  ordered 
by  the  court  to  file  an  account  of  his  proceedings. 

Life  insurance  and  property  exempt  from  execution  do  not  pass  to 
the  assignee  unless  the  assignor  so  elects. 

If  an  assignment  is  declared  void,  the  assignee  is  not  responsible  for 
his  acta  as  assignee  done  in  good  faith. 


Assign. Mr:  NT.  89 

After  an  assignmc-nt  has  boen  executed  and  recorded,  it  cannot  be 
altered  in  any  respect  without  the  consent  of  the  assignor  and  everv 
creditor  alfoetod  thereby:  C.  C,  sees.  3449-3473;  Colorado,  Mill's  Stats!, 
vol.  3,  sees.  1G9-I9.jd;  Montana,  C.  C,  sees.  4510-4535;  New  Mexico,  Comp. 
Laws,  sees.  2818-2870;  Oregon,  Codes  and  Stats.,  sees.  5729-5742;  South 
Dakota,  C.  C,  sees.  2372-2392;  Utah,  Rev.  Stats.,  sees.  84-104;  Washing- 
ton, Ballinger's  Code,  sees.  5842-5858;  Wyoming,  Rev.  Stats.,  eees.  4280- 
4488. 

Neither  Alaska,  Idaho,  Nevada,  nor  North  Dakota  have  statutes  regu- 
lating such  assignment.  All  the  other  states  and  territories  have  stat- 
utes differing  materially  from  each  other,  of  which  none  are  substantially 
the  same  as  the  California  law,  and  the  same  dissimilarity  exists  in  many 
respects   between    each    statute. 

The  California  forms,  as  far  as  they  go,  may  be  readily  adapted  to 
all  the  statutes. 

Statutory  Assignment — Application  of  Statute. — The  provisions  of  the 
Civil  Code  in  relation  to  assignments  for  the  benefit  of  creditors  apply  to 
general  assignments  of  property  situated  in  this  state,  and  under  the  laws 
of  this  state  a  creditor  residing  in  another  state,  or  country  is  not  pre- 
vented from  making  there,  in  good  faith,  and  without  intent  to  evade  the 
laws  of  this  state,  a  transfer  of  property  situated  in  this  state:  Fenton  v. 
Edwards,  126  Cal.  43,  77  Am.  St.  Rep.  141,  58  Pac.  320,  46  L.  R.  A. 
832;   and  a  voluntary  assignment  for  the  benefit   of  creditors   which  is 

lid  by  the  laws  of  the  state  (or  country)  where  it  is  made  will  con- 
vey personal  property  in  any  state  (place)  where  it  may  be  found: 
Fenton  v.  Edwards,  126  Cal.  43,  77  Am.  St.  Rep.  141,  58  Pac.  320,  46 
L.  R.  A.  832. 

An  assignee  for  the  benefit  of  creditors  stands  in  the  shoes  of  the 
pledgor,  if  the  rights  of  the  pledgee  cannot  be  questioned  by  the 
pledgor:  George  v.  Pierce,  123  Cal.  172,  55  Pac.  775,  56  Pac.  53. 

Election  of  Assignee  by  Creditors. — An  assignee,  in  person  or  by 
p'T.xy,  cannot  be  elected  unless  he  receives  a  niajoritv  in  amount  of 
demands  present  at  the  meeting.  The  claims  of  creditors  present  and 
not  voting  must  be  counted  against  the  person  receiving  the  highest 
number  of  votes  in  determining  whether  he  has  received  a  majority: 
Menke  v.  Lyndon,  124  Cal.  '60,  56  Pac.  883. 

Proxies — At  Creditors'  Meetings. — A  general  power  of  attorney  broad 
enough  to  empower  the  agent  to  protect  the  interests  of  the  creditor 
and  to  act  in  his  name  for  that  purpose  entitles  the  agent  to  represent 
the  claim  of  the  creditor  by  proxy  in  the  election  of  assignee:  Menke 
V.   Lyndon,   124   Cal.   ICO,   56  Pac. '883. 

No.  103. — Assignment  by  Sheriff — Benefit  of  Creditors — Cali- 
fornia. 

This  Indenture,  made  this  tenth  day  of  December,  in  tlie 
year  of  our  Lord  one  thousand  nine  hundred  and  five,  by  and 
between  Sheriff  of  the  City  and  County  of  San  Francisco,  State 
of  Cahfornia,  as  such  Sheriff,  and  assignee  of  H.  S.,  an  iiisoJvent 
debtor,  and  IV.  B.,  witnesseth : 

That  whereas,  on  the  third  day  of  October,  ipo^,  in  pursuance 
of  the  provisions  of  Division  IV,  Title  III,  Part  II,  of  the 
Civil  Code  of  California,  did  assign  to  said  Sheriff  his  property 
for  the  benefit  of  his  creditors,  which  assignment  was  in  writing, 
and  was  duly  recorded  in  the  office  of  the  County  Recorder  of 
said  city  a)id  county,  on  the  tJiird  day  of  October,  igo^. 


90  New  Book  of  Forms. 

And  whereas,  the  said  Sheriff  did  thereupon  cause  a  notice  of 
a  meeting  to  the  creditors  of  said  H.  S  to  be  sent  by  mail  to  each 
creditor  named,  and  to  the  address  given  in  said  assignment,  and 
which  notice  specified  the  amount  owing  to  such  creditors,  as  set 
forth  in  said  assignment,  and  notified  them  to  meet  at  his  office 
in  said  city  and  county,  State  of  CaHfornia,  on  Monday,  the  Urs.t 
day  of  October,  1905,  at  10  o'clock  A.  M.  of  that  day,  for  the 
purpose  of  electing  an  assignee  or  assignees  in  his  place  and 
stead,  as  assignee  of  the  property  of  said  H.  S. 

And  whereas,  said  Sheriff  did  cause  a  notice  of  said  meeting 
of  creditors  to  be  published  for  ten  times  in  the  W.  S.,  a  news- 
paper published  in  said  City  and  County  of  San  Francisco,  which 
city  and  county  was  and  is  the  place  and  residence  of  said  H.  S. 

And  whereas,  at  a  meeting  of  the  creditors  of  said  H.  S.,  held 
in  pursuance  of  the  aforesaid  notices,  which  were  given  and  pub- 
lished as  required  by  law  in  such  cases  made  and  provided,  the 
said  JV.  B.,  by  a  majority  in  amount  of  the  demands  against  the 
said  H.  S.  present  and  represented  by  proxy,  was  duly  elected 
assignee  in  accordance  with  the  aforesaid  provisions  of  said  Civil 
Code. 

Now,  therefore,  in  consideration  of  the  premises,  and  in  pur- 
suance of  the  law  in  such  cases  made  and  provided,  I,  /.  /.,  Sher- 
iff as  aforesaid,  do,  as  such  Sheriff,  hereby  convey,  assign,  and 
set  over  to  the  said  W.  B.,  as  such  assignee,  and  to  his  successors 
and  assigns,  upon  the  trusts  provided  in  said  Ti<-le,  all  and  singu- 
lar the  property  of  every  kind  and  description,  so  as  aforesaid 
assigned  to  me  by  the  said  H.  S. 

No,  104. — General  Assignment  for  Benefit  of  Creditors. 

Tins  Indenture,  made  the  second  day  of  May,  nineteen  hun- 
dred and  tive,  by  and  between  L.  M.,  of  D.,  merchant,  of  the  first 
part,  P.  C,  of  A.,  of  the  second  part,  and  the  several  persons, 
creditors  of  the  said  party  of  the  first  part,  who  have  executed, 
or  shall  hereafter  execute,  or  accede,  to  these  presents,  of  the 
third  part,  witnesseth : 

That  whereas,  the  party  of  the  first  part  is  indebted  to  divers 
persons  in  considerable  sums  of  money,  which  he  is  at  present 
unable  to  pay  in  full,  and  he  is  desirous  to  convey  all  his  property 
for  the  benefit  of  all  his  creditors,  without  any  preference  or  pri- 
ority other  than  that  provided  by  law : 

Now,  the  party  of  the  first  part,  in  consideration  of  the  prem- 
ises, and  of  one  dollar  paid  to  him  by  the  party  of  the  second  part, 
hereby  grants,  bargains,  sells,  assigns  and  conveys  unto  the  party 
of  the  second  part,  and  his  heirs  and  assigns,  all  his  lands,  tene- 
ments, hereditaments,  goods,  chattels,  property,  and  choses  in  ac- 
tion, of  every  name,  nature,  and  description,  wheresoever  the 
same  may  be,  except  such  property  only  as  is  exempted  by  law 
from  attachment. 


Assignment.  91 

To  have  and  to  bold  the  said  premises  unto  the  said  party  of 
the  second  j^art,  and  his  heirs  and  assig-ns. 

But  in  trust  and  confidence,  nevertheless,  to  sell  and  dispose  of 
the  said  real  and  personal  estate,  and  to  collect  the  said  choses  in 
action,  using  a  reasonable  discretion  as  to  the  times  and  modes 
of  selling  and  disposing  of  said  estate,  as  it  respects  making  sales 
for  cash  or  credit,  at  public  auction  or  by  private  contract,  and 
with  the  right  to  compound  for  the  said  choses  in  action,  taking 
a  part  for  the  whole,  where  the  trusted"  shall  deem  it  expedient 
so  to  do ;  then  in  trust  to  dispose  of  the  proceeds  of  the  said 
property  in  the  manner  provided  by  law. 

To  distribute  and  pay  the  remainder  of  the  said  proceeds  to 
and  among  all  the  parties  of  the  third  part,  ratably,  in  proportion 
to  their  respective  debts  [or,  if  there  is  a  statute  regulating  the 
distribution,  say:]  according  to  the  true  intent  and  meaning  of 
an  act,  entitled' "An  Act,"  etc. 

And  if  there  should  be  any  surplus,  after  paying  all  the  parties 
of  the  second  part  in  full,  then  in  trust. 

To  pay  over  such  surplus  to  the  person  who  is  entitled  thereto. 

And  the  party  of  the  first  part  hereby  constitutes  and  appoints 
the  party  of  the  second  part  his  attorney  irrevocable,  with  power 
of  substitution,  authorizing  him,  in  the  name  of  the  party  of  the 
first  part,  or  otherwise,  as  the  case  may  require,  to  do  any  and  all 
acts,  matters,  and  things,  to  carry  into  effect  the  true  intent  and 
meaning  of  these  presents,  which  the  party  of  the  first  part  might 
do  if  personally  present. 

And  the  party  of  the  second  part,  hereby  accepting  these  trusts, 
covenants  to  and  with  each  of  the  other  parties  hereto  to  execute 
the  same  faithfully. 

And  the  party  of  the  first  part  hereby  covenants  with  the  said 
trustee,  from  time  to  time,  and  at  all  times  when  requested,  to 
give  him  all  the  information  in  his  power  respecting  the  assigned 
property,  and  to  execute  and  deliver  all  such  instruments  of  fur- 
ther assurance  as  the  party  of  the  second  part  shall  be  advised  bv 
counsel  learned  in  the  law  to  be  necessary,  in  order  to  carry  into 
full  efiPect  the  true  intent  and  meaning  of  these  presents. 

And  the  parties  of  the  third  part,  by  signing  and  sealing  these 
presents,  express  their  assent  to  this  assignment,  and  accept  the 
provision  for  them  made  herein,  pursuant  to  the  statute  aforesaid 
[as  in  General  Form  of  Assignment]. 

No,    105. — Notice — Election   of   Assignee    Sent   by    MaiL 
[Title  of  Court  and  Cause.] 

To/.  5.; 

You  are  hereby  notified  to  attend  a  meeting  of  the  creditors 
of  H.  S.,  to  be  held  at  my  office  in  the  City  Hall,  in  said  city  and 
county,  on  Monday,  tlie  first  day  of  October,  ipoj,  at  two  o'clock 


g2  New  Book  of  Forms. 

P.  M.,  of  said  dnv,  for  the  purpose  of  electin,^  one  or  more  as- 
signees of  said  H.  S.  in  my  place  and  stead.  The  amount  of  your 
demand  set  forth  in  the  assignment  to  me  is  $763.30. 

No.    106. — Notice   to    Creditors — Published. 

[Title  of  Court  and  Cause.] 

Notice  is  hereby  given,  that  a  meeting  of  the  creditors  of  H. 
S.  will  be  held  at'  my  office  on  Tuesday,  the  twenty-fifth  day_  of 
September,  1904,  at  2  o'clock  P.  M.,  for  the  purpose  of  electing 
one  or  more  assignees  in  my  place  and  stead  as  assignees  of  said 
H.  S.,  for  the  benefit  of  his  creditors. 


BILLS. 


No.   107. — Bill  of  Exchange. 

$10,000.  San  Francisco,  July  10,  1904. 

Ten  days  after  sight,  pay  to  the  order  of  /.  B.  &  Co.,  ten  thou- 
sand dollars,  and  charge  the  same  to  account  of 

A.  L.  B.  &  CO. 

To  Messrs.  S.  &  Co.,  New  York. 

No.   108. — A  Set  of  Bills  of  Exchange. 

W-  F.  &  Co.,  Banking  Office. 

A.  Ex.  for  $10,000.  San  Francisco,  Cal,  July  10,  1904. 
At  sight  of  this  first  of  exchange  (second  arid  third  unpaid), 

pay  to  the  order  oi  A.  L.  B.  &  Co.,  ten  thousand  dollars. 
Value  received,  and  charge  the  same  to  account  of 

W.  F.  &  CO. 
To  Messrs.  S.  &  Co.,  Bankers,  New  York. 

W.  F.  &  Co.,  Banking  Office. 

B.  Ex.  for  $10,000.  San  Francisco,  Cal,  July  10,  1904. 
At  sight  of  this  second  of  exchange  (first  and  third  unpaid), 

pay  to  the  order  of  A.  L.  B.  &  Co.,  ten  thousand  dollars. 
Value  received,  and  charge  the  same  to  account  of 

W.  F.  &  CO. 
To  Messrs.  S.  &  Co.,  Bankers,  New  York. 


ElLI.S. 


93 


W.  P.  &  Co.,  Banking  Office. 
C.     Ex.  for  $10,000.  San  Francisco,  Cal.,  Jtily  lo,  1QO4. 

At  sight  of  this  third  of  exchange   (first  and  second  unpaid), 
pay  to  the  order  of  A.  L.  B.  &  Co.,  ten  thousand  dollars. 
Vakie  received,  and  charge  the  same  to  account  of 

W.  F.  &  CO. 
To  Messrs.  S.  &  Co.,  Bankers,  New  York, 

No.  109. — Bank  Check. 

San  Francisco,  May  8,  igo4. 
W.    F.  &  Co.,  pay  to   /.  B.,  or  order,    five    thousand   dollars 
{$5,000). 

A.  L. 

No.  no. — Bank  Draft  or  Check. 


Bated  May  jo,  1904- 
Drawn  by  F.,  P.  S-  Co. 
Drawn  upon  W.  S. 
Order  of  A.  L.  B.  &  Co. 
Time  thirty  days. 
Due  June  2g,  1^04- 
Amount  $1,U00, 
No.  174. 


$i,ooo-  San  FrancL^co,  May  jo,  1904- 

Thirty  (^0)  days  after  date  pay  to  the  order 
of  A.  L.  B.  &■  Co.,  in  United  States  gold  coin, 
one  thousand  (1,000)  dollars.  Value  received 
and  charge  the  same  to  account  of 

F.,   P.    S-   Co. 
To  W.  S. 
No.    1^4. 


No.  III.— Bill  of  Sale. 

Know  ali.  Men  by  these  Presents  :  That  /,  /.  B.,  the  party 
of  the  first  part,  for  and  in  consideration  of  the  sum  of  live  hun- 
dred dollars,  gold  coin  of  the  United  States  of  America,  to  me 
in  hand  paid  by  S.  T.,  the  party  of  the  second  part,  the  receipt 
whereof  is  hereby  acknowledged,  do  by  these  presents,  sell  unto 
the  said  party  of  the  second  part,  his  executors,  administrators 
and  assigns,  the  undizided  one-half  of  one  hundred  acres  of  bar- 
ley, now  grozving  on  my  ranch  near  the  said  town  of  Monterey, 
in  said  county  of  Monterey;  also  one  roan  horse,  about  ixtccn 
hands  high,  hazing  a  zvhite  spot  on  the  face  and  one  zvhiic  ^'lof, 
and  the  letter  "B"  branded  on  the  left  shoulder:  also,  eight  hun- 
dred sheep  now  in  my  possession,  on  my  place  aforesaid,  marked 
one  slit  in  right  ear  and  crop  off  the  left  ear. 

And  /  do  for  my  heirs,  exeaitors,  administrators,  covenant  and 
agree,  to  and  with  the  said  party  of  the  second  part,  his  executors, 
administrators  and  assigns,  to  warrant  and  defend  the  sale  of  the 
said  property,  goods  and  chattels,  unto  the  said  party  of  the  sec- 
ond part,  his  executors,  administrators  and  assicrns,  against  all 
and  ever>^  person  and  persons  whomsoever  lawfully  claiming  or 
to  claim  the  same. 


94  New  Book  oi'  Forms. 


No,  112. — Bill  of  Sale — Simple  Form. 

In  consideration  of  tzvo  hundred  and  fifty  dollars,  to  me  in  hand 
paid  by  B.  B.,  I  do  hereby  sell  and  deliver  to  him  my  broncho 
horse,  H.  W.  B.,  branded  f.  T.  on  the  left  hip. 

No.  113. — Bill  of  Sale — Another  Form. 

Received  of  /.  P.,  one  thousand  dollars,  gold  coin  of  the  United 
States,  in  payment  of  five  thousand  fruit  trees  I  have  sold  and 
delivered  to  him,  this  fourth  day  of  May,  igo6. 

What  Included  in. — A  bill  of  sale  of  "all  the  goods  and  merchandise 
and  property  we  own,  have  or  have  an  interest  in,  in  a  store  in  Nevada, 
County  of  Nevada,  formerly  occupied  by  Bailey  Gatzert,  and  now  in 
the  possession  of  the  sheriff  of  Nevada  county,  said  goods  forwarded 
to  us,  Bailey  Gatzert,  Nevada,"  contains  a  sufficient  description  of  the 
goods:  Coghill  v.  Boring,  15  Cal.  307;  Glasmann  v.  O 'Donnell,  6  Utah, 
452.  24  Pae.  537.  It  is  not,  like  a  deed,  inadmissible  in  evidence  before 
proof  of  delivery:  McFadden  v.  Mitchel,  61  Cal.  148. 

As  between  the  parties  to  a  bill  of  sale,  delivery  and  continued  change 
of  possession  of  the  thing  sold  is  not  necessary,  and  the  purchaser  may 
at  any  time,  as  long  as  it  is  in  the  possession  of  the  vendor,  recover  the 
possession:   Francisco  v.  Aguirre,  94  Cal.   ISO,  29  Pac.  495. 

As  between  third  parties  generally,  there  must  be  an  actual  and  con- 
tinued change  of  possession  to  protect  the  vendee  against  the  creditars 
of  the  vendor:  C.  C.  P.,  see.  3440. 


BOND. 


No.  114. — Condition  of  a  Bond  on  Paying  a  Lost  Note. 

Whereas,  the  above-named  C.  C,  by  his  promissory  note  dated 
the  jd  day  of  June,  ipo^,  did  promise  to  pay  to  IV.  B.,  or  order, 
$1,000,  one  year  after  date,  with  interest  at  the  rate  of  six  per 
cent  per  year,  payable  annually ;  and  whereas  the  said  W.  B.  al- 
leges that  said  note  was  accidentally  destroyed  by  fire  on  August 
3>  ^905^  and  whereas  the  said  C.  C.  has  on  the  day  of  the  date 
hereof,  at  the  request  as  well  of  the  said  W.  B.,  and  upon  his, 
the  said  W.  B.'s  promising  to  indemnify  the  said  C.  C.  and  deliver 
up  the  said  note  to  be  canceled  when  found,  paid  the  said  W-  B. 
the  sum  of  $1,100,  in  full  satisfaction  and  discharge  of  the  said 
note,  the  receipt  whereof  the  said  W.  B.  doth  hereby  acknowl- 
edge: The  condition  therefore  of  the  above-written  obligation  is 
such,  that  if  the  said  W.  B.,  his  heirs,  executors,  or  administra- 
tors, or  any  of  them,  do  and  shall  from  time  to  time,  and  at  all 
times  hereafter,    save,  defend,  keep  harmless  and  indemnified  the 


Bond. 


95 


said  C.  C,  his  executors  and  administrators,  from,  and  against  the 
said  note  of  $i,ooo,  and  of  and  from  all  costs,  chargx^s,  damages 
and  expenses  that  shall  or  may  happen  to  arise  therefrom,  and 
also  deliver  or  cause  to  be  delivered  up  the  said  note,  when  and 
so  soon  as  the  same  shall  be  found,  to  be  canceled :  Then  this  ob- 
ligation shall  be  void,  otherwise,  etc. 

Bonds  and  Like  Instruments  for  the  Payment  of  Money — Execution  of 
Official  Bonds. — A  bond  in  form  to  bind  both  principal  and  sureties 
is  joint;  but  if  it  is  sifjneii  i)y  the  sureties  and  not  by  the  principal, 
it  is  void.  If  the  bond  is  joint  and  several  in  form,  those  sig^ning  are 
bound:  City  of  Sacramento  v.  Punlap,  14  Cal.  421;  cited,  2  Mont.  562; 
City  of  Los  Angeles  v.  Melius,  59  Cal.  444. 

If  a  bond  is  executed  and  the  name  of  the  person  in  whose  favor  it 
runs  is  wrong,  he  may  show  that  he  was  the  person  intended:  Morgan  v. 
Thrift,  2  Cal.  562.  A  bond  taken  by  an  officer  without  authority  is 
void:  Benedict  v.  Bray,  2  Cal.  251,  56  Am.  Dec.  332.  A  bond  not  made 
in  consideration  of  a  good  consideration  is  void:  Mulford  v.  Estudillo, 
17  Cal.  618;  cited,  13  Nev.  212.  A  bond  executed  to  a  sheriff  who  has 
attached  property  exempt  from  execution  is  void  for  want  of  considera- 
tion: Servanti  v.  Lusk,  43  Cal.  238. 

When  the  law  required  joint  and  several  bonds,  and  an  officer  gave 
a  joint  bond,  held  that  his  sureties  could  not  complain  because  the  bond 
was  less  burdensome  than  the  law  required:  Tevis  v.  Randall,  6  CaL 
632,  65  Am.  Dec.  547.  A  statute  required  official  bonds  to  be  made  to 
"the  people  of  the  state  of  California."  A  bond  to  "the  state  of 
California"  held  to  be  good:  Id.;  cited,  1  Idaho,  357.  The  words, 
"That  they  [the  sureties]  are  worth  the  amount  for  which  they  become 
liable  over  and  above  all  their  just  debts  and  liabilities"  mean  the 
same  as  the  words  "over  all  their  debts,"  etc:  People  v.  Dorsey,  28 
Cal.   21. 

No.  115. — Bond,  Penal  (or  Without  Penalty)  for  the  Payment 

of  Money. 

Know  all  Men  by  thesic  Presents:  That  /,  W.  B.,  do  owe 
unto  /.  F.,  the  sum  of  $10,000  to  be  paid  unto  the  said  /.  F.,  his 
executors,  administrators,  or  assigns,  on  the  ?rf  day  of  Jufie, 
1906,  next  ensuing  the  date  hereof ;  for  which  payment,  well  and 
truly  to  be  made,  /  bind  myself,  my  heirs,  executors,  and  adminis- 
trators (in  the  sum  of  $to,ooo),  firmly  by  these  presents.  In 
witness  whereof.  I  have  hereunto  set  my  hand  and  seal  this  jd 
day  of  June,  1905. 

No.  116. — A  Bond  of  Credit  (Letter  of  Credit). 

This  present  writing  witnesseth,  that  /,  R.  C.  of  S.,  banker,  do 
undertake  with  /.  F.  of  S.,  merchant,  his  executors,  and  adminis- 
trators, that  if  he  deliver  unto  E.  F.,  of  S.,  or  any  of  his  assigns 
to  his  use,  any  sum  or  sums  of  money,  amounting  to  the  sum  of 
$10,000,  or  under,  and  shall  take  in  my  name,  a  bill  under  the 
hand  and  seal  of  the  said  E.  F.,  containing  and  showing  the  ccr- 
t-^intv  thereof:  that  then  /,  my  executors  or  administrators,  hiv- 
ing the  same  bill  delivered  to  me  or  them,  shall  immediately  upon 


96  New  Book  of  Forms. 

the  receipt  of  the  same,  pay,  or  cause  to  be  paid  unto  the  said 
J.  F.,  his  executors,  administrators,  or  assigns,  all  such  sums  of 
money  as  shall  be  contained  in  the  said  bill ;  for  which  payment 
in  manner  and  form  aforesaid  well  and  truly  to  be  made,  t  bind 
myself,  my  executors    and  administrators,  by  these  presents. 

No.  117. — Bond  to  Convey  an  Estate  at  a  Time  to  Come,  Free 
from  Encumbrances,  and  in  the  Meantime,  that  the 
Obligee   Shall   Receive  the  Profits. 

The  condition  of  this  obligation  is  such,  that  if  the  above-bound 
A.  B.  do  and  shall,  upon  and  at  the  request  of  the  said  C.  D.,  hii 
heirs  or  assigns,  on  or  before  the  ^d  day  of  June  next  ensuing 
the  date  above  written,  convey  and  assure,  or  cause  to  be  well 
and  sufficiently  conveyed  and  assured,  unto  the  said  C.  D.,  his 
heirs  and  assigns,  or  to  such  other  person  and  persons  and  his 
and  their  heirs,  as  the  said  C.  D.  shall  nominate  and  appoint,  and 
to  such  uses  as  he  shall  direct,  that  property  described  as  follows : 
[description]  now  in  the  possession  of  B.  P.,  by  such  conveyances 
and  assurances  in  the  law,  as  by  the  said  C.  D.  or  his  heirs,  or  his 
or  their  counsel  learned  in  the  law,  shall  be  reasonably  devised  or 
advised,  and  required,  freed  and  discharged,  of  and  from  all  en- 
cumbrances whatsoever,  except,  etc.  And  also  if  the  said  A.  B., 
his,  etc.,  or  either  of  them,  do  and  shall  until  such  conveyance  and 
assurance  be  made  and  executed  as  aforesaid,  permit  and  suffer 
the  said  C.  D.,  his  heirs  and  assigns,  peaceably  and  quietly  to 
have,  receive,  and  take  to  his  and  their  own  proper  use  and  uses, 
the  rents,  issues,  and  profits  of  all  and  singular  the  premises,  and 
every  part  and  parcel  thereof,  without  any  manner  of  let,  suit, 
trouble,  disturbance,  hindrance,  or  denial  of  the  said  A.  B.,  his, 
etc.,  or  any  of  them,  or  of  any  other  person  or  persons  whatsoever 
bv  his  or  their,  or  any  of  their,  means,  right,  title,  or  procure- 
ment, then,  etc.,  or  else,  etc. 

No.  118. — Bond  to  Permit  a  Wife  to  Live  Separate  from  Her 
Husband,  Given  to  a  Third  Person  on  the  Wife's  Behalf. 

Whereas  A.  B.,  the  wife  of  the  above-bounden  C.  B.,  now  lives 
separate  and  apart  from  her  said  husband,  and  follows  the  busi- 
ness and  employment  of  making  and  selling,  etc.,  and  the  said 
C.  B.  hath  agreed  that  his  said  wife  shall  have  and  receive  all 
benefit  arising  thereby,  or  by  any  other  trade  or  business  which 
she  may  think  fit  to  follow,  for  her  own  separate  use  and  support, 
wherewith  he,  the  said  C.  B.,  is  not  to  intermeddle,  or  have  any 
profit  or  advantage  therefrom,  so  as  she  the  said  A.  B.  doth  not 
and  shall  not,  contract  any  debt  or  debts,  for  which  the  person 
or  effects  of  her  said  husband  shall  or  may  be  sued,  charged,  or 
encumbered  by  any  means  whatsoever :  Now,  the  condition  of  this 


Bond.  97 

obligation  is  such,  that  if  the  said  C.  B.  do  and  shall,  from  time  to 
time,  and  at  all  times,  during  the  natural  life  of  the  said  A.  B., 
permit  and  suffer  her,  the  said  A.  B.,  to  live  separate  annd  apart 
from  him,  and  to  have  and  receive  all  profit,  benefit,  and  advan- 
tage arising,  or  which  shall  arise,  from  her  said  trade  or  business 
of  makin^^  and  selling,  etc.,  or  any  other  trade  or  business  which 
she  shall  follow  or  employ  herself  in,  to  and  for  her  own  separate 
use,  support,  and  maintenance,  without  any  account,  suit,  trouble, 
or  molestation  whatsoever,  and  without  doing,  or  causing  or  per- 
mitting to  be  done,  any  act,  matter  or  thing  whatsoever,  whereby 
or  wherewith  the  said  A.  B.  shall  or  may  be  molested  or  encum- 
bered by  any  means  whatsoever;  and  also,  if  the  said  C.  B.,  his 
heirs,  executors  or  administrators,  or  his  or  their  goods  or  chat- 
tels, lands  or  tenements,  shall  at  any  time  or  times  hereafter,  be 
sued,  attached,  or  otherwise  charged,  or  encumbered  for  or  by 
reason  or  means  of  any  debt  or  debts  which  his  said  wife  hath 
contracted,  then  this  obligation  to  be  and  remain  in  full  force  and 
effect,  etc. 

No.  119. — Condition  of  a  Bond  that  a  Person  When  of  Age 
Will  Convey  Land. 

Now  the  condition  of  this  obligation  is  such,  that  if  the  said 
R.  S.  do  and  shall,  when  and  as  soon  as  he  shall  have  attained 
the  said  age  of  twenty-one  years,  at  the  costs  and  charges  of  the 
said  /.  G.,  convey  and  assure  unto  the  said  /.  G.,  his  heirs  and  as- 
signs, by  such  deeds  and  conveyances  as  the  counsel  of  the  said 
/.  G.  shall  advise,  his  undivided  moiety  or  half  part  of  and  in 
the  said  lands  and  tenement  and  premises,  devised  to  him  and  the 
said  G.  S.,  as  aforesaid,  and  that  without  any  consideration  to  be 
paid  him  by  the  said  /.  G.  for  so  doing;  and  also  if,  and  in  case 
the  said  R.  R.,  his  heirs,  executors  or  administrators,  do  and  shall 
in  the  meantime,  and  until  the  said  R.  S.  shall  have  executed  such 
conveyances  as  aforesaid,  save,  defend,  keep  harmless  and  indem- 
nified the  said  /.  G.,  his  heirs,  exeaitors,  and  administrators,  and 
his  and  their  goods  and  chattels,  lands  and  tenements,  and  prem- 
ises, to  be  conveyed  by  the  said  R.  S.  to  the  said  /.  G.  as  aforesaid 
and  the  rents,  issues  and  profits  thereof,  of  and  from  all  claims 
and  demands  to  be  made  thereto  by,  or  on  the  part  and  behalf  of 
the  said  R.  S.     Then,  etc. 

No.  120. — Bond  Conditioned  to  Keep  a  Person  During  Life. 

The  condition  of  this  obligation  is  such,  that  whereas  the  above- 
bound  A.  B.,  for  and  in  consideration  of  the  sum  of  $1,000,  to 
him  in  hand  paid  by  the  above-named  C.  D.,  hath  agreed  and 
undertaken  to  keep  and  maintain  the  said  C.  D.  during  his  life; 
if,  therefore,  the  said  A.  B.,  his  executors  or  administrators,  shall 
from  time  to  time,  and  at  all  times  hereafter  during  the  natural 
New  Forms — 7 


98  Niiw  Book  of  Forms. 

life  of  the  said  C.  D.,  well  and  sufficiently  maintain  and  keep,  or 
cause  to  be  well  and  sufficiently  maintained  and  kept,  the  said  C. 
D.  in  the  house  of  him  the  said  A.  B.,  with  meat,  drink,  clothes, 
and  all  other  things  necessary  and  convenient;  then,  etc.,  or  else 
etc. 

No.  121. — Bond  to  Indemnify  One  that  Indorsed  a  Promissory 
Note  for  Another. 

Know  all,  etc. :  Whereas,  the  above-bound  A.,  by  bill  or  note 
under  his  hand,  dated  the  etc.,  hath  promised  to  pay  unto  C,  or 
order,  six  months  after  date,  the  sum  of  $1,000,  with  interest 
thereon  till  paid ;  and  whereas  the  above-named  B.,  at  the  request 
and  for  the  only  debt  of  the  said  A.,  hath  indorsed  the  said  re- 
cited bill  or  note,  and  is  thereby  become  chargeable,  with  and  for 
payment  of  the  said  sum  of  $1,212. f^o,  and  interest,  at  the  time 
therein  mentioned,  as  by  the  said  bill  and  the  indorsement  there- 
upon may  appear;  Now  the  condition,  etc.,  that  if  the  said  A., 
his  executors  and  administrators,  do  and  shall,  well  and  truly 
pav  the  said  sum  of  $2,212. '^o,  for  which  the  said  note  is  so  given, 
and  the  interest  thereof  added  on  the  day  of  payment  therein  men- 
tioned and  in  full  discharge  thereof,  and  thereof  and  therefrom, 
and  from  all  actions,  suits,  charges,  payment  and  damages  by  rea- 
son thereof,  shall  and  do,  at  all  times,  well  and  sufficiently  save 
harmless,  and  keep  indemnified  the  said  B.,  his  heirs,  executors, 
and  administrators,  and  every  of  them ;  then,  etc. 

No.  122. — Bond  Given  by  a  Master  of  a  Ship,  to  Deliver  Up 
the  Ship  to  the  Ov^ners  on  Demand. 

Know  all  Men,  etc.:  Whereas,  the  above-named  C.  D.  [the 
obligee]  and  the  rest  of  the  part  owners  of  the  ship  Julius,  have 
employed  the  above-bound  A.  B.  as  master  of  the  same,  for  so 
long  a  time  as  they,  or  the  major  part  of  them,  shall  think  fit,  and 
have  thereupon  delivered  the  possession  of  the  said  ship,  with  her 
appurtenances  to  the  said  A.  B.  Now  the  condition  of  this  obli- 
gation is  such,  that  if  the  said  A.  B.,  after  notice  and  demand, 
shall  quietly  deliver  up  the  actual  possession  of  the  said  ship  unto 
the  said  C.  D.,  or  unto  such  other  person  as  the  said  part  owners 
or  the  major  part  of  them,  shall  appoint,  together  with  all  and  sin- 
gular, the  furniture,  tackle,  apparel  and  appurtenances  to  the 
said  ship  belonging  (reasonable  wear  and  tear  excepted),  freed 
from  all  charges  and  encumbrances  done  or  suffered  by  the  said 
A.  B.     Then  etc.;  otherwise,  etc. 

No.  123. — Bond  to  Save  Harmless  from  Paying  Rent,  Where 
the  Title  is  in  Questioru 

The  condition,  etc.,  that  whereas  there  is  a  suit  depending  be- 
tween the  above-bound  R.  C.  and  others,  touching    the  right  and 


Bond.  99 

interest  in  the  now  dwelling-house  of  the  above-named  /.  F., 
situate  etc.,  and  whereas  the  said  /.  F.  hath  agreed  to  pay  a  rent 
of  the  said  house  to  the  said  R.  C,  which  is,  to  pay  the  sum  of 
$iy200,  yearly,  as  the  same  shall  grow  due :  If  therefore  the  said 
R.  C,  his  etc.,  do  and  shall,  well  and  truly  pay,  or  cause  to  be 
paid,  unto  the  said  /.  F.,  his  executors,  administrators,  or  assigns, 
all  such  rent,  sum  and  sums  of  money,  charges  and  damages 
whatsoever,  as  shall,  by  due  proceedings  in  law,  be  adjudged  or 
decreed  against  him  the  said  /.  F.,  his  etc.,  and  all  other  costs  and 
damages  whatsoever,  which  he  the  said  /.  F.  shall  sustain,  or  be 
at,  by  reason  of  any  action,  suit  or  forfeiture  whatsoever  which 
shall  or  may  happen,  or  be  to  the  said  /.  F.,  his  executors,  ad- 
ministrators, or  assigns,  by  reason  of  paying  the  said  rent,  or 
any  part  thereof,  to  the  said  R.  C,  his  executors,  administrators, 
or  assigns,  then  etc. 

No.  124. — Bond  Given  by  One  to  Another  to  Indemnify  Him 
for  Any  Damage  tliat  may  Arise  from  Carrying  on  Busi- 
ness in  His  Name,  etc. 

Know  ali.  Men,  etc.:  Whereas  the  above-named  A.  B.  [the 
obligee]  at  the  request  of  the  above-bound  C.  D.,  hath  consented, 
that  during  the  term  of  three  years,  from  the  date  hereof,  he  the 
said  C.  D.  may  use  the  name  of  the  said  A.  B.  in  carrying  on  the 
business  of  hotel-keeper  (which  he  now  exerciscth  for  his  own 
profit,  and  not  for  the  advantage  or  the  account  of  the  said  A.  B., 
but  only  to  preserve  the  said  business  to  himself,  the  said  A.  B. 
having  wholly  left  off  and  discontinued  the  same),  which  the  said 
A.  B.  hath  permitted  him  to  use  for  the  said  term,  so  that  he  the 
said  A.  B.  may  be  indemnified  against  all  damages,  by  reason  of 
the  said  trade,  or  his  using  his  name  therein.  Now,  therefore,  the 
condition  of  this  obligation  is  such,  that,  if  the  said  C.  D.,  his 
executors  and  administrators,  shall  and  do,  indemnify  and  save 
harmless  the  said  A.  B.,  his  executors  and  administrators,  of  and 
from  all  manner  of  damages,  charges,  and  expenses,  which  he  or 
they  may  sustain  or  be  put  to,  by  reason  of  the  said  C.  D.'s  so 
using  the  name  of  the  said  A.  B.  as  aforesaid,  or  by  reason  of  any- 
thing relating  thereto ;  then  the  above  obligation,  etc. 

No.  125. — Bond  to  Replace  Stock  Loaned. 

Know  all  Men,  etc. :  Whereas  the  above-named  A.  B.  has 
this  day  borrowed  of  C.  D.  one  hundred  shares  of  the  capital  stock 
of  the  B.  F.  Company,  a  corporation:  Now,  the  condition  of  this 
obligation  is  such  that  if  the  above  A.  B.  shall  transfer  or  cause 
to  be  transferred  to  the  said  C.  D.  the  like  number  of  shares  of 
the  said  capital  stock,  on  or  before  January  ?,  /pod,  and  will  from 
time  to  time  pay  said  C.  D.  all  dividends  disclosed  upon  said  stock. 


loo  New  Book  of  Forms. 

with  interest  thereon  at  the  rate  of  ten  per  cent  per  year  from  the 
date  when  said  dividends  were  payable,  then,  etc. 

No.   126. — Bond  Given  to  One  Bound  for  the  Obligor  in  a 
Bond  for  the  Performance  of  Covenants, 

Know  all,  etc.     Whereas,  etc.   [recite  the  bond  given  by  the 

obligee]  conditioned  for  the  true  performing-,  observing,  ful- 

filHng  and  keeping,  of  all  and  every  the  covenants,  grants,  articles, 
clauses,  paymenuts  and  agreements,  which  are  contained  and  spec- 
ified in  one  pair  of  indentures,  etc.,  as  by  the  said  obligation  and 
condition  thereof  may  more  fully  appear :  Now  the  condition,  etc., 
that  if  the  said  C.  D.,  his  etc.,  and  every  of  them,  do  and  shall, 
from  time  to  time,  and  at  all  times  hereafter,  well  and  sufficiently 
save  and  keep  harmless  and  indemnified,  the  said  A.  B.,  his  etc., 
and  every  of  them,  from  all  costs  and  damages,  which  he  or  they 
may  be  put  unto,  for,  by  reason,  or  on  account  of  the  said  recited 
obligation,  or  any  sum  or  sums  of  money  therein  contained ;  then 
etc.,  or  else  etc. 


No.  127. — Bond  for  the  Performance  of  Covenants. 

The  condition  of  the  above  obligation  is  such,  that  if  the  above- 
named  A.  B.,  his  heirs,  executors  and  administrators,  do  and  shall 
well  and  truly  observe,  perform  and  keep  all  and  every  the  cove- 
nants specified  and  contained  in  a  certain  indenture  of  etc.,  bear- 
ing even  date  with  the  above  obligation  and  made  between,  etc., 
which  on  the  part  and  behalf  of  the  said  A.  B.,  his  heirs,  execu- 
tors and  administrators,  is,  are,  and  ought  to  be  observed,  per- 
formed, fulfilled  and  kept,  according  to  the  true  intent  and  mean- 
ing of  the  same  indenture ;  then  the  above  written  obligation  shall 
be  void ;  otherwise  etc. 


No.  128. — Common  Conditions  of  Arbitration  Bonds. 

The  condition,  etc.,  that  if  the  above-bounden  A.  B.,  his  execu- 
tors and  administrators,  shall  for  his  and  their  part,  in  and  by  all 
things,  well  and  truly  observe,  perform,  and  keep  the  award  and 
determination  of  C.  D.,  B.  F.  [if  more  than  two,  say  G.  H.,  or 
any  two  of  them],  arbitrators,  indifferently  chosen  by  the  said 
A.  B.  and  /.  K.,  to  arbitrate,  and  award  concerning  all  manner  of 
action  and  actions,  cause  and  causes  of  action,  suits,  bills,  bonds, 
specialties,  covenants,  contracts,  promises,  accounts,  reckonings, 
sums  of  money,  judgments,  executions,  extents,  quarrels,  contro- 
versies trespasses,  damages,  and  demands,  whatsoever,  both  in 
law  and  in  equity,  at  any  time  hereafter  had,  moved,  brought,  com- 
menced, sued,  prosecuted,  done,  suffered,  or  committed  by  or  be- 
tween the  said  parties,  so  as  the  award  of  the  said  arbitrators  [or 


Bond.  ioi 

any  tivo  of  thctn],  be  made  and  set  down  in  writing,  indented  un- 
der their  hands  and  seals  [or  the  hands  and  seals  of  any  two  of 
them],  ready  to  be  deHvered  to  the  said  parties  in  difference,  on 
or  before  Jutie  j,  1003,  then  this  obligation  shall  be  void;  other- 
wise of  full  force  and  virtue. 

No.    129. — Bond — Offici?-!. 

Know  all  Men  bv  these  Presents;  That  we,  S.  S.  M.,  as 
principal,  and  F.  D.  A.,  G.  H.  K.,  J.  T.  D.,  R.  S.  E.,  S.  M.  M., 
and  B.  G.  L.,  as  sureties,  are  held  and  firmly  bound  unto  the  state 
of  California  in  the  following  penal  sums,  to  wit :  The  said  princi- 
pal in  the  penal  sum  of  fifty  thousand  dollars,  and  the  said  sure- 
ties in  the  following  penal  sums,  to  wit :  the  said  F.  D.  A.  in  the 
penal  sum  of  ten  thousand  (10,000)  dollars ;  the  said  G.  H.  K.  in 
the  penal  sum  of  fii'e  thousand  (5,000)  dollars ;  the  said  J.  T.  D. 
in  the  penal  sum  of  fiz'e  thousand  (5,000)  dollars ;  the  said  R.  S. 
E.  in  the  penal  sum  of  ten  thousand  (10,000)  dollars ;  the  said  S. 
M.  M.  in  the  penal  sum  of  ten  thousand  (10,000)  dollars ;  the  said 
B.  G.  L.  in  the  penal  sum  of  ten  thousand  (10,000)  dollars ;  for 
the  payment  of  which,  well  and  truly  to  be  made,  we  bind  our- 
selves, our  heirs,  executors,  and  administrators,  jointly  and  sever- 
ally, firmly  by  these  presents.  Sealed  with  our  seals  and  dated 
this  fourth  day  of  February,  ipo^. 

The  condition  of  the  above  obligation  is  such,  that,  whereas 
the  above-bound  principal,  S.  S.  M.,  was,  at  a  general  election  held 
in  this  state  on  the  tenth  day  of  September,  1905,  duly  elected  to 
the  office  of  county  treasurer,  in  and  for  San  Mateo  county  and 
state  aforesaid. 

Now,  therefore,  the  condition  of  this  ol>ligation  is  such,  that  if 
the  said  S.  S.  M.  shall  well,  truly,  and  faithfully  perform  all  official 
duties  now  required  of  him  by  law,  and  shall  well,  truly,  and  faith- 
fully execute  and  perform  all  the  duties  of  such  office  of  county 
treasurer  required  by  any  law  to  be  enacted  subsequentlv  to  the 
exeaition  of  this  bond,  then  this  obligation  is  to  be  void  and  of 
no  effect ;  otherwise,  to  remain  in  full  force  and  effect. 

No.   130. — Bond  for  Deed. 

Know  all  Men  by  these  Presents:  That  we,  7.  N.  W.,  as 
principal,  and  J.  A.  M.  and  IV.  P.,  as  sureties,  all  of  the  city  and 
county  of  San  Francisco,  are  held  and  firmly  bound  unto  JV-  S., 
of  the  same  place,  in  the  sum  of  ten  tliousand  five  hundred  dollars 
gold  coin  of  the  United  States  of  America,  to  be  paid  to  the  said 
W.  S.,  his  executors,  administrators  or  assigns ;  for  which  pay- 
ment, well  and  truly  to  be  made,  we  bind  ourselves,  our  heirs,  ex- 
ecutors, and  administrators,  jointly  and  scz'erally.  firmly  by  these 
presents.  Sealed  with  our  seals  and  dated  the  twentieth  day  of 
December,  one  thousand  nine  hundred  and  four. 


102  New  Book  of  Forms. 

The  condition  of  the  above  obhgation  is  such,  that  if  the  above- 
bounden  obhgor  shall,  on  the  twentieth  day  of  March,  1^04,  make, 
execute  and  deliver  unto  the  said  W.  S.,  or  to  his  assigns  (pro- 
vided that  the  said  S.  shall,  on  or  before  that  day,  have  paid  to  the 
said  obligor  the  sum  of  ten  thousand  five  hundred  dollars,  gold 
coin  of  the  United  States  of  America,  the  price  by  said  S.  agreed 
to  be  paid  therefor),  a  good  and  sufficient  deed  for  conveying  and 
assuring  to  the  said  W.  S.,  free  from  all  encumbrances,  all  his 
right,  title,  and  interest,  estate,  claim,  and  demand  both  in  law  and 
equity  as  well  in  possession  as  in  expectancy,  of,  in,  or  to  that  cer- 
tain portion,  claim,  and  mining  right,  title,  or  property  on  that 
certain  vein  or  lode  of  rock  containing  precious  metals  of  gold, 
silver,  and  other  minerals,  and  situated  in  the  Big  Cottonwood 
Mining  District,  county  of  Utah,  and  Territory  of  Utah,  and  de- 
scribed as  follows,  to  wit:  Commencing  on  the  east  or  right  hank 
of  Big  Cottonwood  Canyon,  as  you  ascend  said  canyon,  distant 
southeasterly  one  hiiiuired  and  Hfty  rods  from  Mill  "A,"  thence 
southeasterly  two  thousand  feet,  and  running  parallel  zvith  and 
distant  two  hundred  (200)  feet  easterly  from  that  mining  claim 
designated  and  known  by  the  name  of  "Dolly  Varden" — then  this 
obligation  to  be  void;  otherwise,  to  remain  in  full  force  and  vir- 
tue. 

No.  13.1. — Bond. 

Know  all  Men  by  these  Presents:  That  we,  /.  D.,  of  the 
county  of  Nevada,  state  of  California,  as  principal,  and  R.  R.  and 
J.  S.,  as  sureties,  are  held  and  firmly  bound  unto  /.  P.,  of  said 
county,  in  the  sum  of  twenty-three  hundred  and  fifty  dollars,  geld 
coin  of  the  United  States  of  America,  to  be  paid  to  the  said  /.  P., 
his  executors,  administrators,  or  assigns ;  for  which  payment,  well 
and  truly  to  be  made,  we  bind  ourselves,  our  heirs,  executors,  and 
administrators,  jointly  and  severally,  firmly  by  these  presents. 
Sealed  with  our  seals,  and  dated  the  twenty-third  day  of  Decem- 
ber, 1^04. 

The  condition  of  the  above  obligation  is  such,  that  if  the  abovc- 
hounden  J.  D.,  his  heirs,  executors,  or  administrators,  shall  well 
and  truly  pay,  or  cause  to  be  paid,  in  gold  coin  of  the  United 
States  of  America,  unto  the  said  J.  P.,  his  executors,  administra- 
tors, or  assigns,  the  just  and  full  sum  of  two  thousand  (2,000) 
dollars,  in  gold  coin  of  the  United  States,  in  six  months  from  the 
date  hereof,  with  interest  thereon  at  the  rate  of  one  and  one- fourth 
per  cent  per  month — then  the  above  obligation  to  be  void;  other- 
wise, to  remain  in  full  force  and  virtue. 

No.  132. — Bottomry  Bond. 

Know  aix  Men  by  these  Presents:  That  I,  A.  B.,  master 
and  one-third  owner  of  the  ship  L.,  for  myself  and  P.  C,  who 
owns  the  other  twcKhirds  of  said  ship,  am  held  and  firmly  bound 


Bond.  103 

unto  A.  F.,  in  the  penal  sum  of  one  thousand  dollars,  lawful 
nioiK. ,  lur  the  payment  of  which  to  the  said  A.  P.,  his  heirs,  ex- 
ecutors, administrators,  or  assigns,  I  hereby  bind  myself,  my  heirs, 
executors,  and  administrators,  firmly  by  these  presents. 

Sealed  with  my  seal.  Dated  the  second  day  of  Jutie,  ipo§. 
.  Whereas,  the  above-bounden  A.  B.  hath  taken  up  and  received 
of  the  said  A.  F.  the  just  and  full  sum  of  one  thousand  dollars, 
which  sum  is  to  run  at  respondentia,  on  the  block  and  freight  of 
the  said  L.,  whereof  the  said  A.  B.  is  now  master  from  the  port  of 
►S*.  F.  on  a  voyage  to  the  port  of  A''.  Y.,  having  permission  to 
touch,  stay  at,  and  proceed  to  and  call  at,  all  ports  and  places 
within  the  limits  of  the  voyage,  at  the  rate  of  premium  at  twelve 
per  cent  for  the  voyage.  In  consideration  w'hereof,  usual  risks 
of  the  sea,  rivers,  enemies,  fires,  pirates,  etc.,  are  to  be  on  account 
of  the  said  A.  F.  And  for  further  security  of  the  said  A.  F., 
the  said  A.  B.  doth,  by  these  presents,  mortgage  and  assign  over 
to  the  said  A.  F.,  his  heirs,  exeaitors,  administrators,  and  assigns, 
the  said  ship  L.  and  her  freight,  together  with  all  her  tackle,  ap- 
parel, etc.  And  it  is  hereby  declared,  that  the  said  ship  L.  and  her 
freight  is  thus  assigned  over  for  the  security  of  the  respondentia 
taken  up  by  the  said  A.  F.,  and  shall  be  delivered  to  no  other  use 
or  purpose  whatever,  until  payment  of  this  bond  is  first  made, 
with  the  premium  that  ma)  become  due  thereon. 

Now,  therefore,  the  condition  of  this  obligation  is  such,  that  if 
the  above-bounden  A.  B.,  his  heirs,  exeaitors,  or  administrators, 
shall  and  do  well  and  truly  pay,  or  cause  to  be  paid,  unto  the  said 
A.  F.,  or  to  his  attorneys  legally  authorized  to  receive  the  same, 
his  or  their  executors,  administrators,  or  assigns,  the  just  and  full 
sum  of  one  thousand  dollars,  being  the  principal  of  this  bond,  to- 
gether with  the  premium  which  shall  become  due  thereon,  at  or 
before  the  expiration  of  twenty  days  after  the  arrival  of  the  ship 
L.  at  the  port  of  N.  Y.;  or,  in  case  of  the  loss  of  the  said  ship, 
such  an  average  as  by  custom  shall  have  become  due  on  the  sal- 
vage— then  this  obligation  is  to  be  void;  otherwise,  to  remain  in 
full  force  and  virtue. 

Having  signed  to  three  bonds  of  the  same  tenor  and  date,  the 
one  of  which  being  accomplished,  the  other  two  to  be  void  and  of 
no  effect. 

No.  133. — Bond — Another  Form. 

Know  all  Men  by  these  Presents:  That  /.  D.  an-d  R.  R.  of 
Nipoma,  county  of  San  Luis  Obispo,  state  of  California,  are  held 
and  firmly  bound  imto  C.  IV.  D.,  of  the  same  plaec,  in  the  sum  of 
one  tJi-onsand  five  Jinndred  dollars,  gold  coin  of  the  United  States 
of  America,  to  be  paid  to  the  said  C  W.  D.,  his  executors,  ad- 
ministrators, or  assigns ;  for  which  payment  well  and  trulv  to  be 
made,  we  bind  ourselves,  our  heirs,  executors,  and  administrators, 
jointly  and  severally,  and  firmly  by  these  presents. 


I04  New  Book  o^  Forms. 

Sealed  with  our  seals  and  dated  the  tzventieth  day  of  May,  1^04. 

The  condition  of  the  above  obligation  is  such,  that  if  the  above- 
bonnden  /.  D.  and  R.  R.,  or  either  of  them,  their  or  either  of 
their  heirs,  executors  or  administrators,  shall  well  and  truly  pay, 
or  cause  to  be  paid,  in  gold  coin  of  the  United  States,  unto  the 
said  C.  W.  D.,  his  executors,  administrators,  or  assigns,  the  sum 
of  five  hundred  and  fifty  (330)  dollars,  on  or  before  the  seventh 
day  of  March,  IQ04,  together  with  interest  thereon  at  the  rate  of 
one  and  one-fourth  (i  1-4)  per  cent  per  month,  payable  monthly, 
on  the  sez'cnth  day  of  each  and  every  month — then  the  above  ob- 
ligation to  be  void ;  otherwise,  to  remain  in  full  force  and  virtue. 

And  it  is  hereby  expressly  agreed,  that  should  any  default  be 
made  in  the  paym.ent  of  said  interest,  or  of  any  part  thereof,  on 
anv  day  whereon  the  same  is  made  payable  as  above  expressed, 
and  should  the  same  remain  unpaid  and  in  arrears  for  the  space 
of  ten  (10)  days,  then  and  from  thenceforth — that  is  to  say,  af- 
ter lapse  of  the  said  ten  (10)  days — the  said  principal  sum  of 
Hve  hundred  and  fifty  dollars,  gold  coin  of  the  United  States,  with 
all  arrearages  of  interest  thereon,  shall,  at  the  option  of  the  said 
D.,  his  executors,  administrators,  or  assigns,  become  and  be  due 
and  payable  immediately  thereafter,  although  the  period  first  above 
limiited  for  the  payment  thereof  may  not  then  have  expired,  any- 
thing hereinbefore  contained  to  the  contrary  thereof  in  anywise 
notwithstanding. 

No.  134. — Bond,  with  Warrant  of  Attorney,  to  Confess  Judg- 
ment. 

Know  all  Men,  etc.  [as  in  common  bond,  and  then  add:'\  the 
just  and  full  sum  of  one  thousand  dollars,  on  demand,  then  the 
above  obligation  to  be  void;  else  to  remain  in  full  force  and  vir- 
tue. 

Whereas  I,  A.  B.,  of  etc.,  am  held  and  firmly  bound  unto  A.  C, 
of  etc.,  by  a  certain  bond  or  obligation  of  this  date,  in  the  penal 
sum  of  one  thousand  dollars,  conditioned  for  the  payment  of  five 
hundred  dollars,  on  demand ;  Now,  therefore,  I  do  authorize  and 
empower  anv  attorney  in  any  court  of  record  in  the  state  of  Cali- 
fornia  to  appear  for  me  at  the  suit  of  the  said  obligee  or  his  rep- 
resentatives, in  an  action  of  debt,  and  confess  judgment  against 
me  upon  the  said  bond  or  obligation,  or  for  so  much  money  bor- 
rowed, of  anv  term  or  vacation  of  term,  antecedent  or  stibsequent 
to  this  date ;  and  to  release  to  the  said  obligee  all  errors  that  may 
intervene  in  obtaining  such  judgment,  or  in  issuing  execution  on 
the  same. 

No.  135. — Bond  Waiving  Performance  upon  Certain  Contin- 
gencies to  be  Indorsed  on  a  Contract. 

Know  all  1\Ien,  etc.  \os  in  common  hond:'\  The  condition  of 
this  obligation  is  such  that  if  the  above-bounden  A.  B.    dies  before 


Bond.  105 

material  is  delivered  on  the  ground  of  the  value  of  ^7,000,  then 
this  contract  shall  be  void. 


No.  136. — Bond  for  Performance,  to  be  Indorsed  on  a  Con- 
tract or  Agreement. 

Know  all  Men,  etc.  [as  in  common  bond]  The  condition  of 
this  obligation  is  such,  that  if  the  above-bounden  A.  B.,  his  execu- 
tors, administrators,  or  assigns,  shall,  in  all  things,  stand  to  and 
abide  by,  and  well  and  truly  keep  and  perform,  the  covenants, 
conditions,  and  agreements  in  the  within  instrument  contained,  on 
his  or  their  part  to  be  kept  and  performed,  at  the  time  and  in  the 
manner  and  form  therein  specified — then  the  above  obligation  shall 
be  void;  otherwise,  to  remain  in  full  force  and  virtue. 


No.  137. — Bond  to  Produce  Bill  of  Lading. 

Know  all  Men  by  these  Presents:  That  we,  A.  B.  and  C. 
D.,  composing  the  firm  of  D.  B.  &  Co.,  and  B.  P.  and  G.  H.,  of 
the  city  and  county  of  San  Francisco,  and  state  of  California,  are 
held  and  firmly  bound,  unto  the  owners,  masters,  and  consignees 
of  the  ship  L.  in  the  penal  sum  of  one  thousand  dollars,  to  be 
paid  unto  the  said  owners,  master,  or  consignees,  their  executors, 
administrators,  or  assigns ;  to  which  payment,  well  and  truly  to 
be  made,  we  do  bind  ourselves,  our  heirs,  executors,  and  adminis- 
trators, firmly  by  these  presents. 

The  condition  of  this  obligation  is  such,  that  whereas,  B.  D.  & 
Co.  claim  to  be  true  and  lawful  consignees  of  certain  goods,  wares 
and  merchandise,  now  on  board  the  ship  L.,  of  which  they  hold 
no  valid  bill  of  lading:  Now,  in  consideration  of  the  delivery  of 
said  goods  to  the  said  B.  D.  &  Co.  by  L.  X.  &  Co.,  the  consignees 
of  said  ship  L.,  without  presentation  of  bill  of  lading,  we,  the 
undersigned,  hereby  agree  to  furnish  to  the  said  consignees  of 
said  ship,  within  ten  days  from  the  date  hereof,  a  proper  bill  of 
lading  of  said  goods,  duly  filled  up  to  the  order  of  said  B.  D.  /•> 
Co.;  or  in  default  of  furnishing  such  bill  of  lading,  we  hereby 
agree  to  hold  the  said  owners,  master,  and  consignees,  of  said  ship 
harmless  against  the  claims  for  the  delivery  of  any  party  or  parties 
whatsoever,  and  bind  ourselves  to  pay  to  the  said  owners,  master, 
or  consignees,  all  loss  or  damage  which  they  may  be  called  upon 
to  pay  in  consequence  of  such  delivery  of  said  goods  to  said  B.  D. 
&Co. 

Now,  if  the  said  B.  D.  &  Co.  do  well  and  truly  fulfill  the  condi- 
tions of  the  above  agreement,  then  this  obligation  is  to  be  void 
and  of  no  effect;  otherwise,  to  remain  and  be  in  full  force  and 
virtue. 


io6  New  Book  of  Forms, 

No.   138. — Legatees'   Bonds. 

Know  all  IMen  by  these  Presents:  That  we,  A.  B.,  princi- 
pal, and  C.  D.  and  E.  F.,  of  etc.,  are  held  and  firmly  bound  unto 
A.  L.  and  P.  C,  of  etc.,  executors  of  the  last  will  and  testament  of 
W.  B.,  deceased,  late  of  the  town  of  D.,  in  the  sum  of  one  thou- 
sand dollars,  lawful  money  of  the  United  States,  to  be  paid  to  the 
said  A.  L.  and  P.  C,  executors,  as  aforesaid,  the  survivor  or  sur- 
vivors, or  his  or  their  assigns ;  for  which  payment,  well  and  truly 
to  be  made,  we  bind  ourselves,  our  and  each  of  our  heirs,  execu- 
tors, administrators,  jointly  and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals.     Dated  the  second  day  of  January,  1^04. 

Whereas,  in  and  by  the  last  will  and  testament  of  the  said  W. 
B.,  deceased,  a  legacy  of  one  thousand  dollars  is  bequeathed  to  the 
said  A.  B.,  which  has  been  paid  to  him  by  the  said  executors  as 
aforesaid. 

Now,  the  condition  of  this  obligation  is  such,  that  if  any  debts 
against  the  deceased  above  named  shall  duly  appear,  and  which 
there  shall  be  no  other  assets  to  pay,  and  if  there  shall  be  no  other 
assets  to  pay  other  legacies,  or  not  sufficient,  then  the  said  A.  B. 
shall  refund  the  legacy  so  paid,  or  such  ratable  proportion  thereof, 
with  the  other  legatees  of  the  deceased,  as  may  be  necessary  for 
the  payment  of  such  debts  and  the  proportional  parts  of  other 
legacies,  if  there  be  any,  and  the  costs  and  charges  incurred  by 
reason  of  the  payment  of  the  said  one  thousand  dollars ;  and  that 
if  the  probate  of  the  will  of  the  said  deceased  be  revoked  or  the 
will  declared  void,  then  the  said  A.  B.  shall  refund  the  whole  of 
the  legacy,  with  interest,  to  the  said  A.  L.  and  P.  C,  their  execu- 
tors, administrators  or  assigns. 

l^Q    J2g. — Bond  Conditioned  if  Interest  not  Paid  within  a 
Certain  Time  Whole  Sum  Due, 

Know  all  Men  by  these  Presents:  That  I,  A.  B.,  of  the 
city  of  A.,  in  the  county  of  B.,  and  state  of  C,  am  held  and  firmly 
bound  unto  A.  P.,  of  the  same  place,  in  the  sum  of  one  thousand 
dollars,  lawful  money  of  the  United  States,  to  be  paid  to  the  said 
A.  P.,  his  executors,  administrators,  or  assigns,  for  which  pay- 
ment well  and  truly  to  be  made,  I  bind  myself,  my  heirs,  execu- 
tors and  administrators,  and  every  of  them,  firmly  by  these  pres- 
ents. 

Sealed  with  my  seal.     Dated  the  second  day  of  May,  IQ04. 

The  condition  of  the  above  obligation  is  such,  that  if  the  above- 
bounden  A.  B.,  or  his  heirs,  executors  and  administrators,  shall 
well  and  truly  pay,  or  cause  to  be  paid,  unto  the  above-named 
A.  P.,  his  executors,  administrators  or  assigns,  the  just  and  full 
sum  of  oiie  thoiisayid  dollars,  on  the  second  day  of  January,  which 
will  be  in  the  year  one  thousand  nine  hundred  and  four,  and 


Bond.  107 

the  interest  thereon,  to  be  computed  from  the  date  hereof,  at  and 
after  the  rate  of  twelve  per  cent  per  annum,  and  to  be  paid  yearly 
— then  the  above  obHgation  to  be  void ;  else  to  remain  in  full 
force  and  virtue. 

And  it  is  hereby  expressly  agreed,  that  should  any  default  be 
made  in  the  payment  of  the  said  interest,  or  of  any  part  thereof, 
en  any  day  whereon  the  same  is  made  payable,  as  above  ex- 
pressed, and  should  the  same  remain  unpaid  and  in  arrear  for  the 
space  of  thirty  days,  then  and  from  thenceforth — that  is  to  sav, 
after  the  lapse  of  the  said  thirty  days — the  aforesaid  principal  sum 
of  one  thousand  dollars,  together  with  all  arrearage  of  interest 
thereon,  shall,  at  the  option  of  the  said  A.  P.,  his  executors,  ad- 
ministrators, and  assigns,  become  and  be  due  and  payable  imme- 
diately thereafter,  although  the  period  above  limited  for  the  pay- 
ment thereof  may  not  then  have  expired,  anything  hereinbefore 
contained  to  the  contrary  thereof,  notwithstanding. 

No.  140. — Bond  for  Faithful  Performance  of  Clerk. 

Know  all  Men  by  these  Presents  :  That  we,  /.  S.  and  /.  D., 
of  Troy,  Ohio,  are  held  and  firmly  bound  unto  R.  R.,  of  Troy, 
Ohio,  in  the  sum  of  one  thousand  dollars,  to  be  paid  to  the  said 
R.  R.,  his  executors,  administrators,  or  assigns;  for  which  pay- 
ment, well  and  truly  to  be  made,  we  bind  ourselves,  our  heirs,  ex- 
ecutors, and  administrators  firmly  by  these  presents. 

Sealed  with  our  seals.     Dated  the  first  day  of  January,  IQ04. 

The  condition  of  the  above  oblig-ation  is  such,  that,  whereas 
the  said  R.  R.  has  employed  the  said  /.  S.  as  a  clerk  in  his  busi- 
ness of  banker:  Now,  if  the  said  /.  S.  shall  well  and  faithfully 
discharge  his  duties  as  such  clerk,  and  shall  also  account  for  all 
moneys  and  property,  and  other  things,  which  may  come  into 
his  possession  or  under  his  control  as  such  clerk — then  the  above 
obligation  to  be  void ;  otherwise  to  remain  in  full  force  and  virtue. 

No.   141. — Bond  of  Treasurer  or  Trustee. 

Know  all  Men  by  these  Presents:  That  we,  /.  D.,  as  prin- 
cipal, and  R.  R.  and  /.  S.,  as  sureties,  all  of  the  city  and  county 
of  San  Francisco,  State  of  California,  are  held  and'  firmly  bound 
unto  H.  H.  and  T.  S.,  both  of  the  said  city  and  county,  in  the 
sum  of  orie  thousand  dollars,  gold  coin  of  the  United  States,  to  be 
paid  unto  the  said  H.  H.  and  T.  S.,  or  their  successors  in  office, 
or  their  certain  attorneys,  executors,  administrators,  or  assigns ; 
to  which  payment,  well  and  truly  to  be  made,  we  jointly  and  sev- 
erally bind  ourselves,  our  heirs,  executors,  and  administrators, 
firmly  by  these  presents. 

Sealed  with  our  seals,  and  dated  the  twenty-fifth  day  of  De- 
cember, IQ04. 


io8  New  Rook  of  Forms. 

The  condition  of  this  obli<:^ation  is  such,  that  whereas  the 
above-named  /.  D.  has  been  chosen  by  an  association,  known  as 
the  Union  League,  treasurer  [or,  one  of  the  trustees^^  of  said  as- 
sociation by  reason  whereof  and  as  such  treasurer  [or  trustee], 
he  will  receive  into  his  hands  and  possession  divers  sums  of 
money,  goods,  and  chattels,  and  other  things,  the  property  of 
said  association;  and  is  bound  to  keep  true  and  accurate  accounts 
of  said  property,  and  of  his  receipts  and  disbursements  for  and 
on  account  of  said  association. 

Now,  therefore,  if  the  said  /.  D.  shall  well  and  truly  perform 
all  and  singular  the  duties  of  treasurer  [or  trustee]  of  said  asso- 
ciation, for  and  during  his  official  term,  and  until  he  shall  de- 
liver all  the  property  which  he  may  receive  as  such  treasurer 
[or  triistce]  to  his  successor  in  said  office,  or  to  such  other  person 
as  the  said  association,  or  its  authorized  officers,  may  direct,  ac- 
cording to  the  provisions  of  the  constitution,  by-laws,  rules,  and 
regulations  of  said  association  now  existing,  or  which  may  be  by 
said  association  adopted;  and  shall  keep  true  and  just  accounts 
of  all  property  belonging  to  the  said  association  that  may  come 
to  his  hands ;  and  shall  exhibit  and  submit  to  the  said  associa- 
tion, or  to  the  persons  by  them  thereunto  appointed,  his  said 
accounts,  and  the  vouchers  therefor,  whenever  he  shall  be  thereto 
properly  requested ;  and  shall,  at  the  expiration  of  his  term  of 
office,  by  any  cause  whatever,  deliver  up  to  his  successor  in  office 
all  the  property  of  the  said  association  that  may  be  found  to  re- 
main in  his  hands,  and  his  books  of  accounts,  and  the  vouchers 
thereunto  belonging — then  this  obligation  shall  be  null  and  void ; 
otherwise,  to  remain  in  full  force  and  virtue. 

No.   142. — Bond  of  Indemnity. 

Knov^  au.  Men  by  these  Presents:  That  I,  C.  V.,  of  the 
city  of  New  York,  in  the  state  of  New  York,  am  held  and  firmly 
bound  unto  A.  D.,  of  the  city  of  San  Francisco,  in  the  state  of 
California,  in  the  sum  of  five  thousand  two  hundred  and  seventy- 
Hve  dollars,  gold  coin  of  the  United  States  of  America,  to  be  paid 
to  the  said  A.  D.,  his  executors,  administrators,  or  assigns,  for 
which  payment,  well  and  truly  to  be  made,  I  bind  myself,  my 
heirs,  executors  and  administrators,  firmly  by  these  presents. 

Sealed  with  my  seal.     Dated  the  tenth  day  of  January,  1^04. 

Whereas,  heretofore,  one  F.  B.  M.  filed  his  bill  in  the  district 
court  of  the  United  States  for  the  northern  district  of  California, 
against  the  steamship  C,  upon  cause  of  action  alleged  to  have 
accrued  to  him  in  the  early  part  of  the  year  iSgo;  and  whereas, 
such  proceedings  were  afterward  had  in  said  cause,  in  said  court, 
that  a  judgment  or  decree  was  made  and  entered  therein,  on  the 
fifteenth  day  of  December,  IQ04,  that  the  said  M.  do  have  and  re- 
cover in  said  action  the  sum  of  two  thousand  four  hundred  and 


Bond.  109 

fifty-nine  dollars,  for  his  damages  therein,  and  also  the  sum  of 
one  hundred  and  seventy-one  dollars  and  fifty  cents,  for  his  costs 
of  said  action,  and  that  the  said  steamship  be  condemned  and  sold 
to  satisfy  him  for  his  said  damages  and  costs ;  and  whereas,  at 
the  time  when  said  alleged  cause  of  action  accrued,  the  above- 
bounden  obligor  was  the  mortgagee  and  owner  of  the  said  steam- 
ship, and  liable  ever  for  the  payment  of  such  damages  and  costs ; 
and  whereas,  an  appeal  has  been  taken  from  the  said  judgment  or 
decree  to  the  supreme  court  of  the  Unihjd  States;  and  whereas, 
the  said  above  bounden  obligor  has  applied  to  the  above-named 
obligee  to  become  one  of  the  sureties  in  the  stipulation  to  be  given 
on  the  said  appeal,  to  stay  the  execution  of  said  decree,  and  abide 
the  judgment  and  decree  of  the  appellate  court ;  and  whereas, 
the  said  obligee  has  consented  to  become  such  surety,  upon  being 
indemnified  against  all  loss  or  damage  by  reason  thereof,  and  has 
executed  and  acknowledged  the  necessary  stipulations  on  such 
appeal. 

Now,  the  condition  of  this  obligation  is  such,  that  if  the  said 
obligor,  the  said  C.  V.,  or  his  heirs,  executors,  and  administrators, 
shall  and  do,  at  all  times  hereafter,  well  and  truly,  save  and  keep 
the  said  obligee,  A.  D.,  his  executors  and  administrators,  harm- 
less of  and  from  all  actions,  costs,  damages,  and  counsel  fees,  of 
and  from,  and  by  reason  of,  or  growing  out  of,  such  suretyship, 
and  shall  well  and  truly  repay,  or  cause  to  be  repaid,  to  the  said 
obligee,  his  executors  or  administrators,  on  demand,  any  and  all 
such  sum  and  sums  of  money  that  he  may  be  required  to  pay  as 
such  surety,  as  aforesaid,  then  this  obligation  to  be  void;  else  to 
remain  in  full  force  and  virtue. 

No.   143. — Bond  of  Indemnity  to   Surety. 

Know  all  Men,  etc. :  Whereas,  the  said  C.  D.,  at  the  special 
instance  and  request  of  the  above-bounden  A.  B.,  has  bound  him- 
self, together  with  the  said  A.  B.,  unto  one  E.  P.,  of,  etc.,  in  a 
certain  obligation,  bearing  even  date  herewith,  in  the  penal  sum 
of  one  thousand  dollars,  gold  coin  of  the  United  States,  condi- 
tioned for  the  payment,  in  like  gold  coin,  of  the  sum  of  five  hun- 
dred dollars,  due  and  owing  by  the  said  A.  B.  to  the  said  E.  F. 
on,  etc.  [as  in  the  bond;  or,  if  a  bail  bond  be  referred  to,  say — 
conditioned  for  the  appearance  of  the  said  A.  B.,  etc.]  ; 

Now,  therefore,  the  condition  of  the  above  obligation  is  such, 
that  if  the  said  A.  B.  shall  well  and  truly  perform  and  fulfill  the 
condition  of  the  said  bond  executed  to  the  said  E.  P.,  in  manner 
and  form  as  he  is  therein  required  to  do,  and  at  all  times  here- 
after save  harmless  the  said  C.  D.,  his  heirs,  executors,  and  ad- 
ministrators, of  and  from  the  said  obligation,  and  of  and  from 
all  actions,  costs  and  damages,  for  or  by  reason  thereof,  then  this 
obligation  to  be  void ;  else  to  remain  in  full  force  and  virtue. 


no  New  Book  of  Forms. 


No.   144, — Notary's   Bond. 

Know  all  Men  by  these  Presents  :  That  we,  R.  H.,  as  prin- 
cipal, and  C.  K.,  E.  S.,  and  G.  H.,  as  sureties,  all  of  the  city  of 
San  Francisco,  state  of  California,  the  said  S.  S.  in  the  sum  of 
■five  thousand  dollars,  and  the  said  sureties  in  the  following  named 
sums,  viz. :  C.  K.,  for  five  thousand  dollars,  and  B.  S.  and  G.  H. 
for  the  sum  of  tzventy-five  hundred  dollars  each,  making  in  the 
aggregate  the  whole  penal  sum  of  five  thousand  dollars,  lawful 
money  of  the  United  States,  to  be  paid  to  the  said  state  of  Cali- 
fornia; for  which  payment,  well  and  truly  to  be  made,  we  bind 
ourselves,  our  heirs,  executors,  and  administrators,  jointly  and 
severally,  firmly  by  these  presents. 

Sealed  with  our  seals,  and  dated  this  tzventy-sixth  day  of 
March,   igo4. 

The  condition  of  the  above  obligation  is  such,  that  whereas,  G. 
C.  P.,  governor  of  California,  has  appointed  and  commissioned 
the  above-bounden  R.  H.,  a  notary  public  in  and  for  the  cfty 
and  county  of  San  Francisco,  by  commission  dated  the  third  day 
of  March,  ipo^;  Now,  therefore,  if  the  said  R.  H.  shall  well  and 
truly  perform  the  duties  of  a  notary  public,  as  aforesaid,  during 
his  incumbency  of  said  ofifice  under  and  by  virtue  of  the  commis- 
sion aforesaid,  according  to  law,  and  shall  faithfully  discharge  all 
duties  which  may  be  required  of  him  by  any  law  enacted  subse- 
quently to  the  execution  of  this  bond,  then  this  obligation  shall 
become  void ;  otherv/ise,  to  remain  in  full  force  and  effect. 

No.    145. — Indemnity    Bond    on    Attachment. 

Know  all  Men  by  these  Presents  :  That  we,  G.  B.,  as  prin- 
cipal, and  S.  D.  and  D.  S.,  as  sureties,  are  held  and  firmly  bound 
unto  P.  H.,  sheriff  of  the  city  and  county  of  San  Francisco,  state 
of  California,  in  the  sum  of  five  thousand  five  hundred  and  fifty 
dollars,  gold  coin  of  the  United  States  of  America,  to  be  paid 
to  the  said  sheriff,  or  his  certain  attorney,  executors,  administra- 
tors or  assigns,  for  which  payment,  well  and  truly  to  be  made,  we 
bind  ourselves,  our  heirs,  executors  and  administrators,  jointly 
and  severally,  firmly  by  these  presents.  Sealed  with  our  seals, 
and  dated  the  twenty-sixth  day  of  January,  1904. 

Whereas,  under  and  by  virtue  of  a  writ  of  attachment,  issued 
out  of  the  superior  court  of  the  city  and  county  of  San  Francisco, 
in  an  action  wherein  the  said  G.  B.  is  plaintiff,  and  /.  R.  S.  and 
E.  H.,  defendants,  against  said  defendants,  directed  and  delivered 
to  said  P.  H.,  sheriff  of  the  city  and  county  of  San  Francisco,  the 
said  sheriff  was  commanded  to  attach  and  safely  keep  all  the  prop- 
erty of  said  defendants  within  this  county,  not  exempt  from  ex- 
ecution, or  so  much  thereof  as  may  be  sufficient  to  satisfy  the 


Bond,  i  i  i 

plaintiff's  demand,  amounting  to  two  thousand  five  hundred  and 
sixty-six  dollars  and  forty-five  cents,  United  States  gold  coin,  as 
therein  stated,  and  the  said  sheriflf  did  thereupon  attach  the  fol- 
lowing described  goods  and  chattels,  viz, :  {Here  insert  descrip- 
tion. ] 

And  whereas,  upon  the  taking  of  the  said  goods  and  chattels, 
by  virtue  of  the  said  writ,  one  N.  B.  claimed  the  said  goods  and 
chattels  as  his  own  property. 

And  whereas  the  said  plaintiff,  notwithstanding  such  claiming, 
requires  of  said  sheriff  that  he  shall  retain  said  property  under 
such  attachment  and  in  his  custody. 

Now,  therefore,  the  condition  of  this  obligation  is  such,  that 
if  the  said  G.  B.,  S.  D.,  and  D.  S.,  tlieir  heirs,  executors,  and  ad- 
ministrators, or  either  of  them,  shall  well  and  truly  indemnify 
and  save  hamiless  the  said  sheriff,  his  heirs,  exeaitors,  ,and  ad- 
ministrators, of  and  from  all  damages,  expenses,  costs  and 
charges,  and  against  all  loss  and  liability  which  he,  the  said  sheriff, 
his  heirs,  executors,  or  administrators,  shall  sustain,  or  in  anywise 
be  put  to,  for  or  by  reason  of  the  attachment,  seizing,  levying, 
taking,  or  retention  by  the  said  sheriff,  in  his  custody,  under  said 
attachment,  of  the  said  property  claimed  as  aforesaid,  then  the 
above  obligation  to  be  void ;  otherwise,  to  remain  in  full  force  and 
virtue. 

No.  146. — Indemnity  Bond  on  Execution. 

Know  all  Men  by  these  Presents:  That  we,  G.  B.,  of  the 
city  ayui  county  of  Sayi  Francisco,  as  principal,  and  S.  D.,  and 
D.  S.,  of  said  city  and  county,  as  sureties,  are  held  and  firmly 
bound  unto  P.  J.,  sheriff  of  tlie  city  and  countv'  of  San  Fran- 
cisco, state  of  CaJiforniu,  in  the  sum  of  two  thousand  eight  hun- 
dred and  fifty  dollars,  gold  coin  of  the  United  States  of  America, 
to  be  paid  to  said  sheriff,  or  his  certain  attorney,  executors,  ad- 
ministrators, or  assigns,  for  which  payment,  well  and  tnily  to  be 
made,  we  bind  ourselves,  our  heirs,  executors,  and  administra- 
tors, jointly  and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals,  and  dated  the  sixteenth  day  of  October, 
1904. 

Whereas,  under  and  by  virtue  of  a  writ  of  exeaition,  issued  out 
of  the  superior  court  of  the  city  and  county  of  San  Francisco, 
state  of  Californi-a,  in  an  action  wherein  the  said  G.  B.  is  plaintiff, 
and  7.  R.  S.  and  £.  H.,  defendants,  against  said  defendants,  di- 
rected and  delivered  to  said  P.  J.  W.,  sheriff  of  the  city  and 
county  of  San  Francisco,  state  of  California,  the  said  sheriff  was 
commanded  to  satisfy  the  judgment  in  United  States  gold  coin, 
with  interest,  out  of  the  personal  property  of  such  defendants 
within  his  county  not  exempt  from  execution,  and  if  sufficient 
personal  property  could  not  be  found,  then  out  of  the  real  prop- 


112  New  Book  op  Forms. 

erty  belonging  to  them,  or  either  of  them,  said  defendants,  on  the 
day  when  the  said  judgment  was  docketed,  or  at  any  time  subse- 
quently ;  the  said  sheriff  did  thereupon  levy  upon  and  take  into 
his  possession  the  following  described  goods  and  chattels:  [De- 
scription.] 

And  whereas,  upon  the  taking  of  the  said  goods  and  chattels 
by  virtue  of  the  said  writ,  one  N.  B.,  of  said  city  and  county, 
claimed  the  said  goods  and  chattels  as  his  own  property. 

And  whereas,  the  said  plaintiff,  notwithstanding  such  claming, 
requires  of  said  sheriff  that  he  shall  retain  said  property  under 
such  levy  and  in  his  custody. 

Now,  therefore,  the  condition  of  this  obligation  is  such,  that  if 
the  said  G.  B.,  S.  D.,  and  D.  S.,  their  heirs,  executors,  and  ad- 
ministrators, or  either  of  them,  shall  well  and  truly  indemnify 
and  save  harmless  the  said  sheriff,  his  heirs,  executors,  adminis- 
trators, and  assigns,  of  and  from  all  damages,  expenses,  costs  and 
charges,  and  against  all  loss  and  liability  which  he,  the  said  sheriff, 
his  heirs,  executors,  administrators,  or  assigns,  shall  sustain  or  in 
anywise  be  put  to,  for  or  by  reason  of  the  levy,  taking,  sale,  or 
retention  by  the  said  sheriff,  in  his  custody,  under  said  execution, 
of  the  said  property  claimed  as  aforesaid,  then  the  above  obliga- 
tion to  be  void ;  otherwise   to  remain  in  full  force  and  virtue. 

No.     147. — Bond — Contractor's — Public     Works     of    United 

States. 

Know  all  Men  by  these  Presents  :  That  we,  R.  A.,  as  prin- 
cipal, and  A.  S.  C.  of  New  York,  a  corporation  existing  under 
the  laws  of  the  state  of  New  York,  as  surety,  are  held  and  bound 
unto  the  United  States  of  America  in  the  penal  sum  of  one  hun- 
dred thousand  dollars,  to  the  payment  of  which  sum,  well  and 
truly  to  be  made,  we  bind  ourselves,  our  heirs,  executors,  admin- 
istrators and  successors,  jointly  and  severally,  firmly  by  these 
presents.  The  condition  of  this  obligation  is  such,  that  whereas 
the  above-bounden  R.  A.  has  on  the  fourteenth  day  of  September, 
IQ04,  entered  into  a  contract  with  the  United  States  represented 
by  Major  W.  H.  H.,  Corps  of  Engineers,  United  States  Army, 
for  removing  rocks  in  San  Francisco  Bay,  California: 

Now,  therefore,  if  the  above  R.  A.,  his  heirs,  executors  or  ad- 
ministrators, shall  and  will  in  all  respects  duly  and  fully  observe 
and  perform  all  and  singular  the  covenants,  conditions  and  agree- 
ments in  and  by  the  said  contract  agreed  and  covenanted  by  said 
R.  A.  to  be  observed  and  performed  according  to  the  true  intent 
and  meaning  of  the  said  contract,  and  as  well  during  any  period 
of  extension  of  said  contract  that  may  be  granted  on  the  part  of 
the  United  States  as  during  the  original  term  of  the  same,  and 
shall  make  full  payments  to  all  persons  supplying  him  labor  or 
materials  in  the  prosecution  of  the  work  provided  for  in  said 
contract,  then  the  above  obligation  shall  be  void  and  of  no  effect; 
otherwise  to  remain  in  full  force  and  virtue. 


Bond.  113 

In  witness  whereof,  the  parties  hereto  have  executed  this  in- 
strument this  fourteenth  day  of  September,  1904,  the  name  and 
corporate  seal  of  said  surety  being  hereto  afifixed  and  these  pres- 
ents duly  signed  by  its  proper  officers,  pursuant  to  a  resolution  of 
its  board  of  trustees,  passed  on  the  eighteenth  day  of  Jamiary, 
1904,  a  copy  of  the  record  of  which  is  on  file  in  the  War  Depart- 
ment. 

NOTE.— Act  of  Congress  of  August  13,  1894,  28  Stats.  278. 

No.  148. — Official  Bond — Adjudicated. 

Know  aix  Men  by  these  Presents  :  That  whereas  C.  C.  B., 
of  Alameda  county,  in  the  state  of  California,  was  duly  elected 
treasurer  of  said  county  of  Alameda,  at  the  late  general  election, 
held  on  the  2d  day  of  September,  A.  D.  1904.  Now,  therefore 
w€,  the  undersigned,  acknowledge  ourselves  jointly  and  severally 
bound  unto  the  state  of  California,  in  the  following  sums,  re- 
spectively: E.  A.  H.,  as  surety  in  the  sum  of  $5,000;  A.  L.  in  the 
sum  of  $2,500;  L.  W.  in  the  sum  of  $2,000;  C.  C.  as  surety  for 
$5,000;  W.  P.  T.'  as  surety  in  the  sum  of  $1,000;  H.  P.  J.  as 
surety  in  the  sum  of  $5,000;  S.  B.  M.  as  surety  in  the  sum  of 
$5,500;  A.  J.  C.  as  surety  in  the  sum  of  $5,500;  JV.  H.  D.  as 
surety  in  the  sum  of  $5,000;  D.  S.  as  surety  in  the  sum  of  $1,000; 

B.  F.  R.  as  surety  in  the  sum  of  $2,000;  E.  D.  B.  as  surety  in 
the  sum  of  $2,000.  To  the  payment  of  which  several  sums  we 
respectively  bind  ourselves,  our  heirs,  executors,  and  administra- 
tors, jointly  and  severally,  firmly  by  these  presents.  Sealed  with 
our  seals  and  dated  this  twejity-sccond  day  of  September,  A.  D. 

1904- 

The  condition  of  the  above  obligation  is  such  that  if  the  said 

C.  C.  B.  shall  pay  over  all  moneys  according  to  law  which  shall 
come  into  his  hands,  for  state,  county,  or  other  purposes,  and 
shall  faithfully  and  promptly  discharge  all  the  duties  of  his  said 
office  that  are  now,  or  may  hereafter  be  enjoined  on  him  bv  law, 
then  the  obligation  shall  be  null  and  void ;  otherwise,  the  same 
shall  remain  and  be  in  force  and  effect  in  law. 

Signed  by  all  sureties.* 


*The  sureties  justified  and  the  following  indorsements  were  made  on 
the  bond:  "  OflScial,  1857 — Bond  of  C.  C.  B.,  treasurer  of  Alameda  county. 

"Filed   this    twenty-sixth   day   of   September,    A.    D.    1857.     H.   M.    V., 
Clerk. 

"Approved   October  5,   1857,  by  the   board  of   supervisors.     H.   M.    V., 
Clerk.     By  J.  A.  A.,  Deimty,  Clerk." 

On  appeal  it  wos  objected  to  the  bond  that  the  bond  does  not  show 
any  obligation  upon  the  part  of  C.  C.  B.  to  pay  money;  that  it  is  only 
by  implication  that  C.  C.  B.  is  to  be  held  on  a  promise  to  pay;  that 
the  sureties  are  not  bound  jointly  and  severally;  that  the  principal,  C. 
C.  B.,  is  not  bound  for  the  aggregate  of  all  the  several  sums:  that  in- 
terest on  the  judgment  against  the  sureties  ought  not  to  be  allowed.  All 
•bjections  were  overruled:  People  v.  Breyfogle,  17  Cal.  505. 
New  Forms — 8 


114  New  Book  of"  Forms. 

Time  to  File  Official  Bond. — The  words  "to  be  filed  within  two  days 
afttT  the  meeting  of  the  superv'isors, "  mean  that  the  bond  must  be  filed 
within  the  whole  of  the  two  dayS  succeeding  the  day  of  the  meeting  of 
the  board:  Attorney  General  v.  Seannell,  7  Cal.  432.  If  the  meeting 
takes  place  on  the  ninth  day  of  the  month,  the  ofiicers  have  all  of  the 
tenth  and  eleventh  to  execute  and  present  their  bonds:  Doane  v.  Scan- 
nell,  7  Cal.  393.  That  case  also  holds  that  the  board  had  a  reasonable 
time  thereafter  in  which  to  approve  or  reject  the  bonds. 

Delivery  of  Bond. — Like  a  deed,  a  bond  is  not  operative  until  delrv- 
errd:  People  v.  Van  Ness,  79  Cal.  84,  12  Am.  St.  Rep.  134,  21  Pae.  554. 
Filing  an  official  bond  for  record  is  not  delivery  unless  it  is  preceded 
by  approval:  People  v.  Elneeland,  31  Cal.  288.  If  an  obligee  presents 
an  official  bond  in  court  as  evidence,  it  is  sufficient  evidence  of  its  de- 
livery: Tidball  v.  Halley,  48  Cal.  610. 

Successive  Terms. — If  elected  to  a  new  term  the  officer  must  give  a 
new  bond:  People  v.  Aikenhead,  5  Cal.  106;  cited,  5  Wash.  554,  34  Am. 
St.  Rep.  880,  32  Pac.  538,  19  L.  R.  A.  500.  The  same  case  holds  that 
the  sureties  for  one  term  are  not  liable  on  account  of  things  done  or 
omitted  in  another  term. 

New  Bond — A  board  of  supervisors  may  order  an  officer  to  give  new 
bonds,  but  their  power  is  not  arbitrai-y.  They  must  first  examine  into 
the  facts  of  the  case  and  then  exercise  their  jutlffinent :  People  ex  reL 
De  Fries  v.  Supervisors  of  Marin  County,  10  Cal.  344;  cited,  7  Nev.  397, 

12  Nev.  31.     Such  power  is  always  judicial:  Id. 

Ey  Deputies. — A  bond  by  a  deputy  to  his  principal  officer  is  an  official 
bond,  and  any  person  aggrieved  may  sue  upon  it  if  it  happens  to  bo 
defective  in  the  same  manner  as  if  it  were  in  proper  form:  Hubert  v. 
Mendheim,  64  Cal.  213,  30  Pae.  633.  The  county  has  no  relation  to 
such  bonds:  City  and  County  of  San  Francisco  v.  McAllister,  76  CaL 
246,  18  Pae.  315. 

Undertakings. — They  are  the  same  wording  as  bonds:  Canfield  v.  Bates, 

13  Cal.  606.  The  omission  of  the  words  "to  pay"  in  a  bond  does  not 
matter:  Billings  v.  Eoadhouse,  5  Cal.  71.  The  names  of  the  sureties  need 
not  appear  in  the  body  of  the  undertaking:  Dore  v.  Corey,  13  Cal.  502. 

Amendment  of  Bonds. — A  fatally  defective  officisfl  bond  cannot  be 
cured  bv  amendment  so  as  to  validate  acts  done  without  jurisdiction: 
Geary  v.  Board  of  Supervisors,  107  Cal.  530,  40  Pac.  800. 

Approval  and  Filing  of. — Obligor  is  not  liable  on  official  bond  prior 
to  its  approval  and  filing:  People  v.  Kneeland,  31  Cal.  288.  If  the  wrong 
officer  approves  the  bond,  it  appears  to  be  good,  viz.,  if  approved  by 
a  county  judge  instead  of  a  board  of  supervisors:  Mendocino  County 
V.  Morris,  82  Cal.  145.  See,  also,  People  v.  Evans,  29  Cal.  429.  In 
approving  bonds  the  board  of  supervisors  exercises  judicial  functions: 
Miller  v.  SPocramento  County,  25  Cal.  93;  People  v.  Supervisors  of  Marin 
Co.,  10  Cal.  344. 

Bonds  can  only  be  rejected  because  of  want  of  words  of  form  and 
substance,  or  because  it  is  not  executed  proj)erly  by  good  and  sufficient 
sureties:  Miller  v.  Sacramento  County,  25  Cal.  93.  Failure  to  approve 
a  bond  in  proper  form  and  substance, is  not  the  fault  of  the  officer, 
and  it  does  not  release  his  sureties  nor  does  it  work  a  forfeiture  of  his 
office:  People  v.  Scannell,  7  Cal.  432. 

Where  Officer  Holds  Two  Offices. — A  person  holding  two  separate 
offices  must  give  a  bond  for  each  office:  People  v.  Ross,  38  Cal.  76.  The 
offi.r-es  of  sheriff  and  tax  collector  are  distinct  and  require  two  bonds: 
People  v.  Burkhart,  76  Cal.  606,  18  Pac.  776. 


Bond.  t  i  5 

Seal  and  Consideration — Bonds  Other  than  Official. — Tn  states  wlirro 
the  fominon  law  prevails,  under  seal,  bonds  imply  a  consideration.  In 
California  there  is  no  distinction  between  sealed  and  unsealed  instru- 
ments; a  signed  obligation  implies  a  good  consideration.  "  .A.11  distinc- 
tions between  sealed  and  unsenled  instruments  are  abolished":  C.  C, 
B«c.  1629.  This  does  not  apply  to  notarial  courts  and  seals  of  other 
officers  and  corporations  required  by  law  to  authenticate  their  official 
acts  under  seal. 

State,  Co.-nty  and  Municipal  Bonds. — Such  bonds  can  only  be  issued 
b}'  virtue  of  express  authoritj'-  of  the  legislature:  Sutro  v.  Pe'ttit,  74  Cal. 
332,  5  Am.  St.  Rep.  442,  16  Pac.  7.  Purchasers  of  such  bonds  are  bound 
to  know  the  power  of  the  municipal  corporation  and  its  officers  to  issue 
them:   Sutro  v.  Rodes,  92  Cal.   117,  28  Pac.  98. 

Interest  after  Maturity  on  Coupons. — Coupons  may  be  signed  by  a 
printed  fnc-simHe  of  the  maker's  autograph  adopted  by  him  for  that  pur- 
pose: Penninj^ton  v.  B.iehr,  48  Cal.  .56o.  It  is  only  when  a  city  or 
county  is  miide  generally  liable  for  annual  interest  and  full  means  are 
provided  for  meeting  it  that  it  becomes  liable  for  interest  upon  interest 
on  bonds  not  paid  at  maturity:  Davis  v.  City  of  Sacramento,  82  Cal. 
562,  22  Pac.  1118.  In  many  other  civilized  countries  no  such  distinc- 
tion is  made:  See  cases  cited  from  the  United  States  supreme  court  re- 
ports. 

For  the  Payment  of  Money  in  General. — Mistake  in  baptismal  name  of 
obligor  shown  to  be  accidental  will  not  vitiate  a  bond:  Dolton  v.  Cain, 
14  Wall.  479,  20  L.  ed.  830.  When  a  bond  has  one  good  and  one  bad 
condition,  the  good  one  prevails:  United  States  v.  Mora,  97  U.  S.  422, 
24  L.  ed.  1013.  A  bond  is  valid  as  to  beneficiary'-  even  if  it  may  not 
have  been  as  between  the  maker  and  a  surety  connected  with  it:  Ar- 
rowsmith  v.  Gleason,  129  U.  S.  86,  9  Sup.  Ct.  Eep.  237,  32  L.  ed.  630. 

Seal. — No  seal,  no  bond:  United  States  v.  Linn,  15  Pet.  311  10  L. 
ed.  742. 

Cnnstniction. — In  construing  bonds  the  wording  of  the  condition  somo- 
timi  s  bends  to  the  general  intention  of  the  maker:  Cooke  v.  Graham, 
3  C-anch,  235,  2  L.  ed.  420.  See  Bell  v.  Bruen,  1  How.  184,  11  L.  ed. 
89.  If  two  reasonable  constructions  are  possible,  the  one  that  stands 
for  right  will  be  adopted:  Noonan  v.  Bradley,  9  Wall.  407,  19  L.  ed. 
757.  A  joint  bond  may  be  equitably  changed  to  several  if  independent 
evidence  establishes  such  was  the  intention:  Pickersgill  v.  Lahens  15 
Wall.  143,  21  L.  ed.  119. 

The  reporter  says  that  "or"  is  never  construed  to  mean  "and"  when 
the  evident  intention  of  the  parties  would  be  defeated.  The  supreme 
cour*  said  another  thing,  viz..  "The  word  'or'  is  frequently  construed 
to  mean  'and,'  and  rire  versa,  in  onler  to  carr^-  out  the  evident  intent 
of  tie  parties":  Dumont  v.  United  States,  98  U.  S.  145.  2.";  L.  ed.  65. 
Practical  construction  put  upon  bonds  after  their  maturity  is  material 
in  considering  whether  they  bear  interest  according  to  the  place  of 
their   performance:    Coghlan    v.    South    Carolina    R.    R.,    142    U.    S.    114, 

12  Sup.  Ct.  Rep.  150,  35  L.  ed.  956. 

Law  Governing. — United  States  supreme  court  does  not  know  whether 
bonds  made  payable  at  a  place  outside  of  a  state  without  express  legis- 
lative authority  are  governed  by  the  laws  of  the  state  where  payable, 
or  by  the  laws  of  the  state  where  made:  Ottawa  v.  National  Bank,  105 
V.  S.  346,  26  L.  ed.  1127;  but  it  does  know  that  coupons  payable  in  New 
York  draw  interest  according  to  its  laws:   Caro  v.  Zane,  149  U.  S.  142, 

13  Sup.  Ct.  Rep.  803,  37  L.  ed.  680.  Bonds  issued  under  two  harmo- 
nious acts,  all  power  conferred  by  both  may  be  exercised:  Id.  Failure 
to   present   coupons    for   payment   does   not   stop  the   running   of   interest: 


ii6  New  Book  of  Forms. 

Walnut  V.  Wade,  103  U.  S.  695,  26  L.  ed.  526.  Coupons  draw  interest 
after  niatnrity:  Ohio  v.  Prank,  103  U.  S.  698,  26  L.  ed.  531. 

Interest  on  bonds  owned  and  held  as  collateral  security  should  he 
allowed  from  date  of  delivery:  Kichardson  v.  Green,  133  U.  S.  49,  10 
Sup.  Ct.  Eep.  280,  33  L.  ed.  523. 

Negotiability  of. — A  blank  for  payee's  name  in  bonds  intended  to  be 
negotiable  may  be  filled  in  by  the  holder.  Until  so  filled  the  holder 
is  to  be  regarded  as  the  bearer:  White  v.  Vermont  E.  Co.,  21  How. 
577,  16  L.  ed.  221.  If  a  bond  is  uncertain  as  to  the  amount  payable, 
it  is  not  negotiable;  hence  bonds  for  £225  in  London  and  $1,000  in  New 
York:  Parsons  v.  Jackson,  99  U.  S.  439,  25  L.  ed.  457. 

Interest  Coupons. — Detachable  coupons  are  negotiable:  Thompson  v. 
Lee  Co..  3  Wall.  332,  18  L.  ed.  177;  Clarke  v.  Iowa  City,  20  Wall.  589, 
22  L.  ed.  427;  Ketehum  v.  Duncan,  96  IT.  S.  662,  24  L.  ed.  868;  Hartman 
V.  Greenhow,  102  U.  S.  684,  26  L.  ed.  271;  Eailwav  v.  Sprague,  103  U. 
S.  761,  26  L.  ed.  556;  and  Walnut  v.  Wade,  103  U.  S.  696,  26  L.  ed.  526, 
where  it  is  said:  "Where  bonds  have  not  matured,  detached,  overdue 
coupons  are  still  negotiable."  Suit  may  be  brought  thereon  without 
producing  the  bonds  to  which  they  were  attached:  Aurora  City  v.  West, 
7  Wall.  105,  19  L.  ed.  50.  The  reporter  says,  "Coupons  commend  them- 
selves to  favorable  view  because  of  their  great  convenience  and  use  in 
interest  of  business  and  commerce."  In  delivering  the  opinion  of  the 
court,  Mr.  Justice  Nelson  said  what  the  reporter  reported  by  way  of 
illustration;  but  said:  "Even  without  this  consideration"  the  coupons 
were  negotiable:  The  City  of  Lamson,  9  Wall.  483,  19  L.  ed.  729.  It 
■was  also  said  that  "interest  coupons  are  not  independent  instruments, 
but  part  of  the  bonds  not  legally  severed  until  the  interest  is  paid": 
Id.     Compare  Thompson  v.  Lee,  and  other  cases  above  noted. 

Pledges  of  Bonds. — A  pledgee  is  protected  as  a  holder  to  the  amount 
of  his  advances:  Lytle  v.  Lansing,  147  U.  S.  63,  13  Sup.  Ct.  Eep.  254.  P,7 
L.  ed.  81.  The  same  rule  applies  to  a  creditor  without  notice:  American 
File  Co.  V.  Garrett,  110  U.  S.  294,  4  Sup.  Ct.  Eep.  90,  28  L.  ed.  152. 

Bights  of  Purchaser. — Bonds  payable  to  bearer  are  transferable  by  de- 
liverv,  even  when  overdue.  To  invalidate  such  transfer  it  is  necessary 
to  make  out  some  defect  in  the  transferrer's  title:  National  Bank  of 
Washington  v.  Texas,  20  Wall.  81,  22  L.  ed.  295;  City  of  Lexington  v. 
Butler,  14  Wall.  296,  20  L.  ed.  813;  Burke  v.  American  Loan  etc.  Co., 
155  U.  S.  540,  15  Sup.  Ct.  Eep.  214,  39  L.  ed.  253;  Eailway  v.  Spragne, 
103  U.  S.  760,  26  L.  ed.  556.  The  burden  of  proof  is  upon  him  who 
asserts  bad  faith  in  acquiring  bonds  payable  to  bearer:  Kneeland  v. 
Lawrence,  140  U.  S.  212,  11  Sup.  Ct.  Eep.  786,  35  L.  ed.  493.  Purchaser 
of  bonds  with  overdue  coupons  sold  at  a  small  price  and  containing  un- 
filled blanks  is  supposed  to  have  notice  that  they  were  stolen  before 
issuance:  I'arsons  v.  Jackson,  99  U.  S.  441,  25  L.  ed.  457. 

Indemnity  Bond. — "Whereas,  the  undersigned  have  this  day,  by  deed 
bearing  dal  e  and  executed  this  twenty-ninth  day  of  August,  1857,  entered 
into  an  agreement  with  divers  persons  at  present  occupying  portions  of 
the  Eanch  San  Leandro,  respecting  said  rancho,  and  to  adjust  difficulties 
between  said  persons  and  the  undersigned;  and  there  is  pending  an  appeal 
from  the  circuit  court  of  the  United  States  in  the  case  of  C.  Eoyseau  v. 
E.  Campbell  et  al.,  said  persons,  parties  to  said  agreement  of  this  date, 
being  parties  defendant  thereto.  Now,  therefore,"  etc.  Held,  that  on 
demurrer  the  bond  is  binding  and  imports  a  consideration:  Mulford  v. 
EstudUlo,  17  Cal.  618. 

Bond  for  Deed. — A  bond  with  the  usual  condition  concluded  as  fol- 
lows: "Now,  if  the  said  B.  Schreve  shall  on  or  before  the  fifteenth 
day  of  April,  1895,  make,  execute  and  deliver  to  said  W.  and  E.  B. 
Kinkaid,  a   quitclaim,   good  and  sufficient   deed   to    [certain   premises], 


Bond — Contracts.  i  i  7 

provided,  that  on  or  before  the  fifteenth  day  of  April,  ISHO,  W.  and 
E.  B.  Kinkaid,  do  well  and  faithfully  pay  to  B.  Schreve,  or  ordrr,  cer- 
tain promissory  notes,"  etc.  Held,  that  demand  made  by  the  obliye^ea 
upon  the  obligor  to  make  the  deed  is  essential  to  recovery:  Kinkaid  t. 
Schreve,   17   Cal.   275. 

No.  149. — Bond  from  Several  Persons  for  Several  Sums. 

Know  all  Men  by  these  Presents:  That  A.  B.  etc.,  C.  D. 
^tc,  B.  F.  etc. J  G.  H.  etc.,  and  /.  K.  etc.,  are  severally  and  respect- 
ively held  and  bound  unto  A'^.  O.  in  the  respective  sums  following-, 
viz.,  each  of  them  the  said  A.  B.,  C.  D.,  E.  F.,  G.  H.,  in  the  sum 
of  $1,000  apiece,  and  the  said  /.  K.  in  the  sum  of  $f;,ooo,  to  be 
paid  to  the  said  N.  O.,  his,  etc.,  to  which  said  several  payments, 
well  and  truly  to  be  made,  each  of  them  doth  hereby  bind  and 
oblige  himself,  his  heirs,  etc.,  severally  and  respectively,  but  not 
jointly,  nor  one  for  the  other,  firmly  by  these  presents. 


CONTRACTS. 


No.    150. — Subscription    (Contract)    for  the  Accom.plishment 
of  an  Object  of  Interest  to  All. 

We,  the  undersigned,  citizens  of  the  state  of  California,  for 
and  in  consideration  of  the  advancement  of  the  educational  in- 
terests of  this  state,  do  hereby  promise  and  agree  to  pay  to  the 
finance  committee  to  be  elected  hereafter  by  the  Christian  Church 
of  Santa  Rosa,  the  sums  set  opposite  our  respective  names,  to  aid 
m  the  erection  and  furnishing  a  building  in  or  near  the  town  of 
Santa  Rosa,  Sonoma  county,  to  be  dedicated  and  used  as  a  college 
for  the  education  of  the  youth  of  this  state,  to  be  under  the  man- 
agement and  control  of  the  Christian  Church,  payable  in  gold  coin 
as  follows,  to  wit:  One-third  to  be  paid  when  the  sum  of  ten 
thousand  dollars  is  raised  for  the  purposes  stated,  and  said  college 
building  is  under  contract;  one-third  when  the  building  is  put  up 
and  inclosed,  and  one-third  when  said  building  is  completed : 

Name.  Residence.  Amount. 

A.  J.  Santa  Rosa.  $500 

/.  H.  Santa  Rosa.  $300,  or  ten  acres  of  land  if  required. 

G.  A.  Santa  Rosa.  200 

T.  /.  Santa  Rosa.  200 


ii8  New  Book  of  Forms. 

Mutual  Obligations. — If  a  nnmber  of  persons  subscriho  to  a  paper 
in  -which  they  promise  to  contribute  money  for  the  accomnlishmcnt  of 
an  object  of  interest  to  all,  as  the  erection  of  a  building  for  a  college, 
and  which  object  cannot  be  accomplished  save  by  their  common  per- 
formance, their  mutual  promises  constitute  mutual  obligations,  and  are 
a  sufficient  consideration  to  support  the  promise  of  each:  Christian  Col- 
lege V.  John  Hendley,  49  Cal.  347.     Such  writings  are  contracts. 

In  the  ease  of  Grand  Lodge  of  the  Independent  Order  of  Good 
Templars  of  the  State  of  California  v.  Elina  C.  Farnham,  it  was  said 
that  a  promise  to  pay  subscription  to  a  charitable  object  is  a  mere  of- 
fer, and  may  be  revoked  at  any  time  before  it  is  accepted  by  the  prom- 
isee, and  an  acceptance  can  only  be  shown  by  some  act  by  the  prom- 
isee whereby  a  legal  liability  is  incurred  or  money  is  expended  on  the 
faith  of  the  promise.  The  rule  is  otherwise  when  the  snbscribers  agree 
to  make  up  a  specific  sum,  and  when  the  withdrawal  of  one  increases 
the  amount  to  be  paid  by  the  others.  In  such  case  there  is  a  mutual 
jixability.  and  the  cosubscribers  may  maintain  an  action  against  one 
who  refuses  to  pay.  The  court  also  said.  Christian  College  v.  Hendley, 
49  Cal.  347,  is  not  in  conflict  with  what  was  said  above.  It  would 
jave  been  good  had  a  reason  been  stated  why  it  is  not. 

Subject  Matter  of  Subscriptions. — It  is  not  against  public  policy  to 
obtain  subscriptions  to  build  a  statehouse:  State  Treasurer  v.  Cross,  9 
Vt.  289.  31  Am.  Dec.  626;  nor  to  aid  all  public  works:  Commissioners  of 
Canal  Fund  v.  Perry,  .5  Ohio,  56;  and  in  Missouri  a  woolen  mill  is  con- 
sidered a  public  benefit  because  it  is  a  public  industry,  and  enhances  the 
value  of  adjacent  property:  Pitt  v.  Gentle,  49  Mo.  75.  Under  this  head 
a  long  line  of  public  enterprises,  such  as  railroads,  churches,  canals, 
schools,  colleges,  racetracks,  theaters,  cemeteries,  balls  and  banquets 
have  been  aided  by  subscriptions,  and  the  subscriptions  enforced  by 
the  courts,  which  are  collected,  sorted  and  classified  in  volume  45  of 
Century  Edition  of  American  Digest,  from  1658  to  1896. 

Consideration  for  Subscription. — A  subscription,  like  any  other  prom- 
ise, requires  a  consideration  to  support  it:  Gait  v.  Swain,  9  Gratt.  633, 
60  Am.  Dec.  311.  When  several  promise  to  contribute  to  a  common 
object,  the  promise  of  A.  is  a  good  consideration  for  the  promise  of  the 
others. 

Defendant,  with  others,  associated  together  to  raise  a  fund  with 
which  a  minister  would  be  supported  to  "perpetuate  the  blessings  of  the 
Gospel."     Consideration  was  good:   Somers  v.  Miller,  9  Conn.  458. 

An  undertaking  to  purchase  a  lot  and  build  a  church  if  the  object 
is  stated  in  a  subscription  paper  is  a  good  consideration  in  Connecticut, 
for  a  subscription:   North  E.  Soe.  v.  Matson,  36  Conn.  26. 

Defendant  promised  to  pay  plaintiff  $1,000  toward  the  payment  of 
a  soldiers'  monument  if  a  county  would  pay  $2,000.  The  county  paid 
plaintiff  that  amount.  Held,  that  defendant's  subscription  became  ab- 
solute when  the  county  paid  the  $2,000  and  the  consideration  for 
defendant's  promise  was  said  payment:  La  Fayette  C.  M.  Corps  v. 
Magoon,  73  Wis.  627,  42  N.  W.  17,  .3  L.  R.  A.  761. 

Contingent  and  Conditional  Subscriptions. — Where  a  subscription 
paper  recites  that  the  subscription  is  made  on  the  express  condition 
tbat  a  certain  sum  in  the  aggregate  shall  be  subscribed  and  paid  in 
for  the  purpose  stated  before  the  agreement  is  to  become  binding, 
valid  subscriptions,  or  actual  payments  to  the  amount  specified,  are 
contemplated  as  a  condition  precedent  to  absolute  liability:  First  Pres- 
byterian Church  of  Albany  v.  Cooper,  10  N.  Y.  St.  Rep.  142. 

If  conditional  subscriptions  are  made  by  those  who  have  no  author- 
ity or  power  to  make  them,  thev  must  be  disreg'arded  when  considering 


Contracts.  up 

whether  the  conditions  of  the  subscription  paper  have  been  romnlied 
with:  Twenty-third  St.  B.  Ch.  v.  Cornwall,  .56  N.  Y.  Sup.  Ct.  2G0 

A  subscriber  who  makes  an  agreement  with  a  county  to  give  a  cer- 
tain sum  for  certain  purposes  on  condition  that  the  county  shaD  make 
a  stated  donation  for  the  same  purpose,  becomes  bound  by  his  airree^- 
ment  when  the  county  raises  and  gives  the  specified  amount:  La  Fay- 
ette County  Monument  Corp.  v.  Ryland,   SO  Wis.  29,  49  N.  W.  1.57. 

A  subscription  to  a  school  upon  condition  that  the  instructor  agrees 
to  teach  if  he  procures  sixty  subscribed  scholarships  is  not  binding  on 
the  subscriber  if  the  instructor  conducts  the  school  with  less  than  sLrty 
subscribed  scholarships:   Turner  v.  Baker,  30  Ark.  186. 

In  all  such  subscriptions  the  courts  hold  that  the  liability  of  the 
subscriber  is  fixed  when  the  condition  upon  which  he  subscribed  has 
happened:  Franklin  College  v.  Huriburt,  28  Ind.  344.  To  sustain  sneh 
subscriptions  it  is  essential  that  there  shall  be  no  conditions  as  to  the 
liability  of  any  of  the  subscribers  not  applicable  to  all:  New  York 
Exch.  Co.  v.  De  Wolf,  31  K  Y.  273. 

Failure  of  Consideration  for  Subscription. — After  subscription,  if 
nothing  is  done  within  a  reasonable  time  to  accomplish  the  object  in 
view,  it  is  a  failure  of  consideration:  Foxcroft  Academy  v.  Favor  4 
Me.  330;  Brimhall  v.  Van  Campen,  8  Minn.  13,  82  Am.  Dee.  118.  ' 

Subscribers  agreed  to  pay  certain  amounts  to  a  religious  society  for 
the  support  of  a  minister  of  their  faith,  but  a  person  of  another  faith 
was  employed.  Held,  to  be  a  failure  of  consideration  for  the  amounts 
promised:   Congregational   Soc.  in   Troy  v.  Goddard,  7  N.  H.  430. 

Subscription  Wlien  Only  an  Offer.— A  gratuitous  subscription  by  one 
signer  is  but  an  offer,  which,  until  accepted  by  the  promisee,  in  express 
terms  or  by  the  performance  of  the  conditions  stipulated  therein,  is 
a  nudum  pactum:  Broadbent  v.  Johnson,  2  Idaho,  300,  *32o,  13  Pae.'83. 
Where  a  subscriber  writes  conditions  above  his  subscription,  others 
subscribe  r.nd  add  other  conditions;  held  that  each  subscriber 'is  held 
to  his  own  conditions:  Miller  v.  Preston,  4  N.  Mex.  314,  17  Pac.  565. 

Promises  to  Pay  Subscription.— A  subscriber's  repeated  promises  to 
pay  need  not  be  followed  by  work  done  in  reliance  thereon.  If  the 
subscription  is  not  binding,  then  the  subscriber's  promise  does  not 
validate.  An  action  to  recover  is  always  founded  on  the  subscription 
and  not  on  a  subsequent  promise:  Thomas  Kane  &  Co.  v.  Downing,  14 
Mont.  343,  36  Pac.  355.  In  Landwerlen  v.  Wheeler,  106  Ind.  523  o'  N 
E.  888,  some  weight  was  given  to  the  fact  that  repeatedly  p^^isin? 
to  pay  a  subscription  had  great  weight. 

In  Indiana  a  subscription  to  assist  in  the  payment  of  premiums  offered 
by  the  directors  of  a  driving  park  association  where  horseraces  were  to 
take  place  is  based  upon  a  good  consideration:  Mullin  v  Beech  Grove 
D.  P.,  64  Ind.  202.  If  it  is  to  pay  off  an  old  church  debt  it  is  not  good 
unless  there  is  a  new  consideration  founded  upon  an  obligation  which 
is  assumed  by  the  signer's  subscription:  University  of  Des  Moines  v 
Livingstone,  57  Iowa,  307,  42  Am.  Rep.  42,  10  N.  'w.  738  \  written 
subscription  imports  a  consideration:  First  M.  E.  Church  of  Madison  v 
Donrrll.  95  Iowa,  494,  64  N.   W.   412.  ■ 

In  Massachusetts  a  subscription  or  note  made  in  aid  of  a  fund  for 
the  support  of  a  minister  or  parish  is  void  for  want  of  a  consideration- 
Boutoll  V.  Cowdon.  9  INTass.  254. 

If  the  subscription  is  to  pay  a  certain  sum  to  raise  a  fund  to  estab- 
lish an  academy,  made  to  no  one  in  particular,  and  having  only  a 
public  benefit  for  its  consideration,  it  is  not  binding:   7  Am.  Dec    201 

A  subscription  is  supported  by  a  sufficient  consideration  where  others 
were  led  to  subscribe  thereby  ["a  boll  cow"]:  Pembroke  v  Stetson 
22  Mass.  506.  Contrary,  see  Methodist  O.  H.  Assn.  v.  Sharp  6  Mo  \pn' 
loO.     An  agreement  as  follows  was  held  to  be  supported  upon  a  goo'd,  if 


I20  New  Book  of  Forms. 

not  a  valuable,  consideration:  We  agree  "to  pay  the  several  sums  set 
opposite  to  our  respective  names  for  the  purpose  of  furnishing  a  free 
dinner  on  the  Fourth  of  July  to  returned  soldiers":  Comstock  v.  How- 
ard, 15  Mich.  237. 

A  subscription  by  which  persons  interested  in  the  repairing  of  a 
highway  promise  to  pay  to  one  of  their  number  the  sums  severally 
subscribed  by  them  to  bo  expended  for  that  purpose  is  valid:  Van 
Eensselaer  v.  Aikin,  44  Barb.  547. 

A  subscription  reading:  "We,  the  undersigned,  for  value  received, 
promise  to  pay  to  the  consistory  of  A.  B.  the  several  sums  set  opposite 
to  our  several  names  for  the  purpose  of  paying  the  indebtedness  of 
said  church,  on  condition  that  $1,000  be  subscribed."  Held,  to  be  valid: 
Irustees  of  Eeformed  P.  D.  Church  of  Eochester  v.  Hardenburg,  48  How. 
Pr.  414. 

A  note  executed  as  a  gratuitous  subscription  to  a  college  cannot  be 
enforced  when  nothing  has  been  done,  and  no  liabilitv  incurred  on  the 
faith  of  it:  Sutton  v.  Trustees  of  O.  U.,  7  Ohio  C.  C.  343. 

Work  Done,  Money  Expended,  Liability  Incurred  on  Faith  of  Prom- 
ise.— A  subscription  on  faith  of  promise  is  binding  after  expenditures 
of  money  or  liability  incurred:  Griswold  v.  Trustees  of  Peoria  Univer- 
sity, 26  HI.  41,  79  Am.  Dec.  361;  Underwood  v.  Wolden,  12  Mich.  73; 
\zn  "Rensselaer  v.  Aikin,  44  Barb.  547;  Ohio  W.  F.  College  v.  Higgins, 
16  Ohio  St.  20;  Eyerss  v.  Trustees  P.  Conn,  of  B.,  33  Pa.  St.  114;  Gulf 
etc.  Ey.  Co.  v.  Neeley,  64  Tex.  344;  Gait's  Exr.  v.  Swan,  9  Gratt.  633, 
60  Am.  Dee.  311, 

In  such  cases  an  action  will  lie  to  recover  a  subscriber's  proportional 
part  of  the  amount  due:  Pryor  v.  Cain,  25  HI.  292. 

Acceptance  of  Subscription. — As  a  general  rule,  unless  the  subscrip- 
tion paper  so  provides,  notice  of  acceptance  of  a  subscriber's  promise 
is  unnecessary:  Eichelieu  Hotel  Co.  v.  International  Military  Encamp- 
n-ent  Co.,  140  111.  248,  33  Am.  St.  Eep.  234,  29  N.  E.  1044;  but  if  it  ia 
stipulated  that  notice  of  acceptance  shall  be  given,  a  subscription  will 
n  t  be  enforced  until  notice  is  given:  Wiswell  v.  Bresnahan,  84  Me.  397, 
21  Atl.  885. 

Without  stipulation  that  notice  of  accept^.nce  shall  be  given,  any  ex- 
penditure of  money  or  liability  incurred  upon  the  faith  of  a  subscrip- 
tion is  all  that  is  necessary:  Grand  Lodge,  I.  O.  G.  T.  v.  Farnham,  70 
Cal.  158,  11  Pac.  592. 

On  the  other  hand,  it  has  been  held  that  to  make  a  subscription 
binding  it  must  be  accepted  "like  any  other  promise  or  offer,"  and  the 
party  apprised  within  a  reasonable  time  that  his  offer  is  accepted: 
Gait's  Exr.  v.  Swan,  9  Gratt.  633,  60  Am.  Dec.  311.  The  use  of  the 
words,  "Like  any  other  promise  or  offer,"  in  deciding  Gait's  Exr.  v. 
riwan,  does  not  seem  to  conflict  with  the  first  case  in  the  note  referred 
to. 

Verbal  Promise  to  Subscribe, — A  promise  made  publicly  in  church 
to  subscribe  a  portion  of  the  indebtedness  due  from  the  church  ia 
founded  upon  a  valid  consideration,  where  expenses  have  been  in- 
curred upon  the  faith  of  such  subscriptions  generally,  though  no  defi- 
nite expenditure  was  made  upon  the  faith  of  one  particular  subscrip- 
tion: Capelle  v.  Trinity  M.  E.  Church,  Fed.  Cas.  No.  2392. 

Time  of  Performance. — Subscription  read:  "And  upon  the  further 
consideration  that  the  board  of  trade  shall  erect  and  complete  said 
proposed  building  and  occupy  the  same  for  its  regular  sessions  within 
two  years  from  .January  1,  1881."  Held,  that  the  latter  condition  went 
to  the  whole  promise,  and  on  a  breach   thereof  no  suit  could  be  main- 


Contracts.  i2t 

tained  on  the  contract:  Cincinnati  etc.  R.  Co.  v.  Bcnsley,  51  Fed.  738,  19 
L.  R.  A.  796. 

Where  there  are  paymenta  to  be  made  at  different  times  at  different 
stages  of  the  work,  only  those  subscriptions  are  binding  that  correspond 
•with  the  work  finished  as  stipulated:  Johnson  v.  College  Hill  etc.  R.  R. 
Co.,  Ohio,  D.  C,  3  Week.  Law  Bui.  410.  If  a  structure  is  to  be  erected, 
it  must  be  erected  within  a  reasonable  time  to  hold  a  subscriber  to  its 
bnilding  fund:  Paddock  v.  Bartlett,  68  Iowa,  16,  2.5  N.  W.  906.  When 
a  building  is  to  be  finished  at  a  fixed  time,  time  is  essential,  and  strict 
performance  only  holds  subscribers:  Bohn  Mfg.  Co.  v.  Lewis,  45  Minn. 
164,  47  N.  W.  652. 

In  Homan  v.  Steele,  18  Neb.  652,  26  N.  W.  472,  it  is  said  that  a  delay 
of  a  few  days  is  not  material;  and  in  Paddock  v.  Bartlett,  68  Iowa.  16, 
25  N.  W.  906,  it  is  said  that  generally,  where  the  time  for  the  erection 
of  a  building  is  not  stated  in  a  subscription,  it  must  be  erected  within 
a  reasonable  time.  In  Seley  v.  Texas  etc.  R.  Co.,  2  W^illson  Civ.  Cas. 
App.,  sec.  87,  it  is  held  that  when  a  subscription  paper  binds  a  railroad 
company  to  build  its  road,  and  to  complete  and  equip  it  within  twelve 
months  from  the  date  of  the  contract,  and  if  the  road  is  in  progress  of 
bona  fide  construction  and  if  the  failure  to  construct  it  within  the  stipu- 
lated time  vs  reasonably  accounted  for,  and  if  the  road  is  fully  con- 
Btructed  and  trains  runnirig  thereon  before  suit  is  brought  to  enforce 
the  subscription,  the  siibscriber  is  liable. 

Revocation  of  Subscription. — A  promise  to  pay  a  subscription  to  some 
charitable  object  is  a  mere  offer,  and  may  be  revoked  at  any  time  be- 
fore it  is  accepted:  Grand  Lodge  T.  O.  G.  T.  v.  Farnham,  70  Cal.  158,  11 
Pac.  592.  See,  also.  Williams  v.  Rogan,  59  Tex.  438.  The  removal  from 
a  city,  or  change  of  residence  in  a  city  by  a  subscriber  where  a  church  is 
located,  is  not  a  revocation,  '•■nd  will  not  bar  the  recovery  of  the  money 
subscribed  for  its  completion:  Wilson  v.  First  Pres.  Chr.  of  S.,  56  Ga. 
554. 

A  subscriber  who  headed  a  subscription  List  for  the  benefit  of  a 
church  notified  the  trustees  that  he  would  not  pay  his  subscription 
unless  a  certain  person  was  excluded  from  speaking  in  the  church. 
The  supreme  court  of  Illinois  differed  with  him  and  Snell  sulked:  Snell 
v.  Trustees,  58  111.  290. 

When  upon  the  promise  by  subscribers  the  promisee  expends  money, 
f^c,  upon  the  faith  of  the  promise,  the  subscriber  must  pay:  Beach 
V.  First  M.  E.  Church,  96  111.  177.  See,  also,  Athol  M.  H.  Assn.  v. 
Carey,  116  Mass.  471. 

Assignment  of  Subscription. — A  subscription  list  to  pay  a  stipulated 
sum  to  a  railroad  or  its  assignees  upon  the  completion  of  a  .tenot  is 
a  negotiable  instrument:  Vannay  v.  Duprez,  72  Ind.  26.  Also  so  held 
as  applied  to  a  subscription  bonus  for  the  erection  of  a  hotel:  Southern 
Hotel  Co.  V.  Chauteau.  53  Mo.  572.  Such  assignments  are  taken  sub- 
ject to  all  equities  in  favor  of  subscribers:  Rockwell  v.  Daniels,  4  Wis. 
432. 

Release  or  Discharge  of  Subscriber. — Misuse  of  the  money  subscribed 
or  the  use  of  it  for  other  purposes  does  not  dis^hrirge  the  subscriber: 
Franklin  College  v.  Hurlburt,  28  Ind.  341.  In  Vermont,  a  subscription 
to  a  religious  society  by  its  members  binds  and  they  cannot  discharge 
tlun'iselvi.3  from  their  obligations  by  any  change  of  religious  belief: 
First  Congregational  Soc.  v.  Swan,  2  Vt.  222. 

Deatli  or  Insanity  of  Subscriber. — If  a  subscriber  dies  before  his  offer 
is  accepted,  it  is  there bv  revoked:  Grand  Lodge  I.  O.  G.  T.  v.  Farn- 
ham. 70  Cal.  158.  11  Pac."  592.  In  Pratt  v.  Trustees.  93  111.  475,  34  Am. 
Rep.   1S7,  the  same  point' was  involved,  with  the  same  result. 


122  New  Book  of  Forms. 

The  insanity  of  the  subscriber  has  the  same  effect:  Beach  v.  First 
M.  E.  Church,  96  111.  177;  but  if  a  promissory  note  is  given  by  the 
subscriber,  his  death  does  not  revoke  his  subscription:  Friedline  v. 
Board  of  Trustees,  23  111.  App.  494. 

If  the  subscriber  died  before  work  was  commenced  on  a  church,  for 
the  erection  of  which  he  subscribed,  the  fact  that  the  church  was 
built  in  reliance  on  his  subscription  does  not  make  his  estate  liable 
to  pay  the  subscription:  Twenty-third  St.  Baptist  Church  v.  Comwell, 
117  N.  Y.  601,  23  N.  E.  177,  6  L.  E.  A.  807.  A  subscription  for  the 
benefit  of  a  proposed  association  is  a  mere  proposal  and  is  withdrawn, 
by  the  death  of  a  subscriber,  before  the  association  is  formed:  Phipps 
v'  Jones,  20  Pa.  St.  260,  59  Am.  Dec.  708. 

Changes  in  Contract. — Where  a  subscriber  to  a  public  work  permits 
it  to  be  carried  on  for  a  time  without  objection,  he  will  be  regarded  as 
acquiescing  in  the  acts  done,  and  will  not  be  relieved  from  his  subscrip- 
tion on  the  ground  that  the  dan  has  been  changed  and  the  work  is  of 
no  benefit:  Ex  parte  Booker,  18  Ark.  338.  Subscription  to  pay  a 
sum  of  money  if  a  college  should  be  located  on  a  designated  forty  acres 
o:C  a  tract  of  land.  It  was  built  on  the  tract  but  not  on  the  forty  acres. 
After  it  was  built  defendant  made  an  oral  promise  to  pay  his  subscrip- 
tion, and  plaintiff  contended  that  the  new  promise  was  acquiescence  in 
the  change  of  plan.  There  being  no  consideration  for  the  oral  prom- 
i^\  held  that  defendant  was  discharged  from  his  obligation  to  pay: 
Schuler  v.  Myton,  48  Kan.  282,  29  Pac.  163.  There  was  a  subscription 
to  build  a  church.  It  was  not  built  as  contemplated  by  the  subscribers. 
A  subscriber  said  to  those  in  charge,  "Go  ahead  and  finish  it  and  I 
will  pay  my  subscription."  Held  to  be  acquiescence  in  the  change  of 
plans:  Reformed  Prot.  Dutch  Church  v.  Brown,  17  How.  Pr.  287.  See, 
also,  29  Barb.  335. 

Joint  and  Several  Liability. — A  subscription  providing  that  the  sub- 
scriber shall  be  liable  only  for  the  amount  set  opposite  his  name  is  a 
several  obligation:  McFarland  v.  Lyon,  4  Tex.  Civ.  App.  586,  23  S.  W. 
554. 

"We,  the  subscribers,  promise  to  pay  A.  B.,  teacher,  the  following 
rates  of  tuition,"  etc.  The  liability  is  several,  and  not  joint:  Beck  v. 
Pounds,  20  Ga.   36. 

"We  promise  to  pay  the  amount  set  opposite  to  each  of  our  names," 
is  not  a  joint  but  is  a  several  promise:   Robertson  v.  March,  4  111.  198. 

"We,  the  undersigned,  promise  to  pay  the  following  subscriptions." 
There  were  amounts  set  opposite  to  each  name.  Held  to  be  a  several, 
and  not  a  joint,  contract:  Landwerlen  v.  Wheeler,  106  Ind.  523,  5  N.  E. 
888. 

"We  each  agree  to  pay  A.  B.  $1,000  when  he  has  drilled  a  gas-well" 
was  held  to  be  a  several  contract  to  each  subscriber:  Current  v.  Fulton, 
10  Ind.  617. 

A  contract  was  made  with  a  large  number  of  subscribers  to  build 
a  creamery  for  the  aggregate  amount  of  their  subscriptions,  they  agree- 
ing to  pay  "the  above  amount,"  and  not  to  be  liable  for  any  indebted- 
ness "except  that  which  is  hereby  created,  and  to  be  paid  by  the  par- 
ties of  the  first  part."  When  the  subscription  was  signed  it  was 
orally  agreed  that  each  subscriber  would  be  liable  only  for  the  amount 
set  opposite  to  his  name,  and  it  was  so  held:  Davis  v.  Belford,  70  Mich. 
120,  37  N.  W.  919. 

In  Bort  V.  Snell,  39  Hun,  388,  it  was  said,  generally,  that  the  signers 
of  a  subscription  paper  are  severally,  and  not  jointly,  liable. 


Contracts.  123 

No.    151. — Subscription    (Contract)    for    Charitable   Purposes, 

Sati  Litis  Obispo,    Cal.,  January  i,  i8g6. 

We,  the  undersigned  citizens  and  business  men  of  the  city  of 
San  Luis  Obispo,  do  hereby  agree  to  pay  the  amount  set  opposite 
our  respective  names  to  the  subscription  committee  of  Los  Osos 
Parlor,  No.  61,  N.  S.  G.  W.,  on  or  before  the  fifteenth  day  of 
March,  i8p6,  at  the  city  of  San  Luis  Obispo.  The  money  to 
be  used  in  entertaining  delegates  to  the  Grand  Parlor  of  the  A'^. 
S.  G.  W.  during  their  stay  in  the  city  of  San  Luis  Obispo. 

J.  &  J.,  Ramona  Hotel,  $500. 

Subscriptions  for  Entertainments. — A  subscription  paper  went  forth 
to  obtain  promises  to  pay  the  amounts  set  opposite  each  subscriber's 
name,  to  "entertain"  certain  "delegates"  scheduled  to  visit  a  city 
at  a  time  stated.  The  paper  was  circulated  by  a  committee  composed 
of  citizens,  residents  of  the  city  to  be  visited.  The  paper  was  in  the 
same  words  as  the  above  form,  to  which  this  writing  is  a  note.  The 
defendants  were  subscribers  and  the  proprietors  of  a  large  hotel  in 
tl'at  city  at  the  time  the  subscription  was  made.  A  committee  was 
considering  the  mritter  of  giving  a  ball,  a  banquet,  or  both,  to  the  dele- 
gates, and  it  was  agreed  (verbally)  at  the  time  of  the  subscription, 
or  immediately  thereafter,  between  the  committee  and  defendants  that 
if  the  ball  and  banquet  were  given,  that  one  of  them  should  be  given 
at  defendant's  hotel,  and  in  case  neither  were  given  at  their  hotel, 
their  subscription  should  be  reduced  one-half.  The  court  says  that 
this  agreement  converted  the  subscription,  which  was,  on  its  face,  orig- 
inally, one  to  a  charitable  purpose,  into  a  contract  to  pay  the  amount 
subscribed  upon  the  condition  that  a  ball  or  banquet  should  be  given 
to  the  delegates  at  defendants'  hotel;  and  a  ball  was  given  pursuant 
to  the  agreement.  The  promise  was  a  good  consideration  for  another 
promise  to  pay  the  full  sum  sued  for.  The  defendants  contended  that 
there  were  expenciitures  made  that  did  not  come  within  the  meaning  of 
their  subscription  for  "entertainment"  which  they  said  was  synony- 
mous with  "board,"  and  includes  only  the  ordinary  necessities  of  life. 
The  court  took  judicial  notice  of  the  fact  that  there  is  a  large  distinc- 
tion between  entertaining  a  friend  at  one's  home,  or  a  hotel-keeper 
"entertaining"  a  traveler  at  his  hotel  and  entertaining  a  large  body 
of  strangers  by  the  residents  and  business  men  of  a  city.  At  this  point 
the  court  took  judicial  notice  of  several  things  known  to  many  people 
who  have  been  taken  judicial  notice  of,  and  says:  "What  may  be  in- 
cluded in  the  entertainment  of  the  visiting  body  is  usually  limited  to 
the  amount  of  money  available  for  the  purpose,  aiid  the  ingenuity  of  the 
entertainers  in  devising  so'urces  of  enjoyment."  The  money  was  ex- 
pended for  purposes  fairly  within  the  intent  of  the  subscription  paper: 
Lasar  v.  Johnson,  125  Cal.  549,  58  Pac.  161.  This  note  is  incomplete 
unless  it  is  said  that  the  original  "charitable  purpose"  subscriptioa 
was  toward  the  worthy  expense  of  entertaining  delegates  to  the  Grand 
Parlor  of  the  California  Native  Sons,  at  San  Luis  Obispo  in  April  and 
May,  1896. 

No.  152. — Subscription  (Contract)  to  Take  Stock  in  a  Corpo- 
ration  to  be   Formed. 

We,  the  undersig^ned,  agree  to  form  a  corporation  under  the 
laws  of  the  state  of  California  for  the  purpose  of  the  manufac- 


124  New  Book  of  Forms. 

turing  hydrogen  and  carbon  monoxide  gases.  The  capital  to  be 
three  hundred  thousand  dollars,  divided  into  one  hundred  thousand 
shares  of  the  par  value  of  three  dollars  each.  As  soon  as  the 
corporation  is  formed  we,  and  each  of  us,  agree  to  pay  to  the 
secretary-  of  the  corporation,  at  his  office  in  the  city  and  county  of 
San  Francisco,  CaUfornia,  without  demand,  ten  per  cent  of  the 
par  vahie  of  the  stock  subscribed  by  us,  and  the  balance  when 
called  upon,  until  the  amount  subscribed  is  fully  paid,  but  all 
other  calls  under  said  subscription  shall  be  made  by  the  board  of 
directors  with  such  notice  as  the  corporation's  by-laws  shall  pro- 
vide. 

Witness  our  hands  this  first  day  of  April,  ipo§. 

A.  S.,    San  Francisco,  $^,ooo. 

Subscriptions  Binding. — A  subscription  to  the  stock  of  a  proposed 
corporation  for  the  purpose  of  forming  it  is  valid;  the  promises  of  the 
other  signers  and  the  common  object  sought  to  be  accomplished  is  a 
suflBcient  consideration  for  the  promise  of  each  signer:  Marysville  Elec- 
tiic  L.  &  P.  Co.  V.  Johnson,  93  Cal.  538,  27  Am.  St.  Eep.  215,  29  Pac. 
126.  Such  subscriptions  need  not  specify  the  acts  necessary  to  be  done 
to  incorporate  or  show  where  the  principal  place  of  business  of  the 
corporation  is  to  be.  The  mutual  promise  of  the  subscribers  is  a  suffi- 
cient consideration  for  the  promise  of  each  and  is  valid.  Such  an  agree- 
ment does  not  make  the  subscriber  a  member  of  the  corporation;  but 
such  membership  is  immaterial  where  there  is  a  promise  to  pay  a  cer- 
tain percentage  of  the  par  value  of  the  stock:  West  v.  Crawford,  80 
Cal.  19,  21  Pac.  1123. 

No.  153. — Subscription  (Contract)   to  Secure  Right  of  Way, 

etc. 

We,  the  undersigned,  residents  of  San  Bernardino  Valley,  in 
consideration  of  the  benefits  accruing  therefrom,  hereby  sub- 
scribe and  agree  to  pay  the  amount  set  opposite  our  names  to  se- 
cure the  right  of  way  and  depot  grounds  for  the  San  Bernardino 
Valley  Railway  Company  on  the  line  known  as  the  L.  or  Park 
Avenue  line  right  of  way,  one  hundred  feet  wide  over  and 
through  my  land  kncnvn  as  "Victoria,"  also  depot  grounds;  also 
in  addition  to  the  above,  the  sum  of  two  thousand  five  hundred 
dollars;  all  on  condition  that  the  California  Central  Railway 
Company  maintain  said  road,  to  be  built  by  me  on  a  line  running 
parallel  to  Dr.  P.'s  north  line,  and  distant  therefrom  eight  hun- 
dred feet,  as  marked  on  Engineer  T.  P.'s  map  the  precise  loca- 
tion of  depot  as  may  be  agreed  upon  by  M.  G.  and  P. 

M.  G.,  $2,500. 

NOTE. — Action  brought  in  name  of  men  comprising  a  railroad  com- 
mittee. The  subscription  was  upheld.  The  wording  of  the  subscription 
paper  was  complicated  and  not  in  good  form,  but  as  incomplete  as  it 
was,  it  was  upheld  in  Judson  v.  Gage,  91  Cal.  304,  27  Pac.  676.  The 
decision  says:  "The  road  did  conform  to  Mr.  Gage's  ideas." 


Contracts.  125 

No.  154. — Subscription  (Contract)  Assisting  to  Build  a  Struc- 
ture (Railroad). 

Whereas,  the  undersi<^ned  desire  to  procure  tne  construction 
and  operation  of  a  steam  railroad  from  the  Oakland  wharf  of 
the  C.  P.  R.  R.  Co.  to  the  State  University  at  Berkeley,  and  the 
Western  Development  Company  proposes  to  construct  and  oper- 
ate, or  cause  to  be  operated,  a  storm  railroad  on  said  line,  pro- 
vided the  undersigned  will,  at  their  own  expense,  procure  and 
convey  to  it  the  right  of  zvay;  and  provided  further  that  the  un- 
dersigned will  pay,  or  cause  to  be  paid,  to  said  company  the  sum 

of  tzventy  thousand  dollars  upon  the  completion  of  the  road 

the  road  to  be  commenced  upon  the  execution  of  the  conveyance 
and  the  deposit  of  said  tzventy  thousand  dollars  in  hank;  the 
money  to  be  paid  by  the  bank  to  the  company  upon  the  comple- 
tion of  the  road :  Now,  therefore,  in  consideration  of  the  premises, 
we,  the  undersigned,  hereby  agree  to  contribute  and  pay  for  the 
carrying  out  of  the  fotcgoing  enterprise,  on  demand,  the  sum 
of  money  set  opposite  our  names,  in  United  States  gold  coin. 
Names    Amount    ^ 

NOTE. — Action  brought  on  the  subscription  in  name  of  Western  De- 
velopment Company  and  sustained  in  Western  Development  Co.  v  Emery 
61  Cal.  611.  ^' 


No.  155. — Subscription  (Contract)  for  a  Book  to  be  Published. 

Whereas,  T.  S.  &  S.,  publishers,  are  about  to  publish  the  life 
and  times  of  S.  L.  and  S.,  attorneys  at  law,  in  nine  volumes,  of 
800  pages  each,  bound  in  full  yellozv  wolf,  zcifh  3,000  illustrations 
by  the  celebrated  artist,  S.  S.,  Esq.,  to  be  delivered  as  each  vol- 
ume is  published,  F.  0.  B.  C,  publication  to  commence  on  or 
before  January  i,  ipo§,  and  to  be  completed  on  or  before  Janu- 
ary I,  JQ06:  Now,  with  the  object  to  promote  the  circulation  of 
instructive  literature,  I  subscribe  for  three  sets,  at  $f;.oo  a  vol- 
ume. The  publisher  reserves  the  right  to  publish  all  or  any  of 
the  illustrations  in  one  (i)  extra  volume  for  which  I  also  sub- 
scribe and  agree  to  pay  $j.oo. 

J.  S. 

Subscriptions  After  Publication. — As  to  subscriptions  made  after  the 
publishers  have  announced  a  publication,  the  universal  judicial  opinion 
on  this  subject  is  that  contracts,  by  the  terms  of  which  a  person  at^rees 
to  take  and  pay  for  a  book  is  void  for  want  of  consideration  as  to  un- 
delivered books,  etc.  Such  contracts  may  be  rescinded  at  any  time 
on  the  part  of  the  subscriber  by  giving  the  publisher  written  notice 
not  to  deliver  any  more  books,  etc.,  under  the  contract.  If  the  sub- 
scription is  made  before  the  work  is  commenced  to  be  published,  and  if 
it  can  be  shown  that  the  publication  was  commenced  and  continued  on 
consideration  of  the  subscription,  recovery  may  be  had;   but  it  is  clear 


126  New  Book  of  Forms. 

that  if  the  subscription  is  made  after  the  work  is  commenced  to  be  pub- 
lished, there  is  no  consideration  for  the  contract:  Pomeroj's  Notes  to 
Estee  's  Pleadings,  vol.  1,  sec.  392. 

No.  156. — Contract  and  Specifications — To  Construct  Flume, 

Ditch,   etc. 

This  agreement,  made  and  entered  into  this  thirtieth  day  of 
March,  A.  D.  Jpo^,  between  the  San  Diego  Flume  Company,  a 
corporation,  organised  and  existing  under  the  laws  of  California, 
the  party  of  the  first  part,  and  /.  /.,  of  San  Diego,  California,  the 
party  of  the  second  part,  witnesseth : 

That  the  said  party  of  the  second  part,  for  and  in  considera- 
tion of  the  compensation  and  payments  hereinafter  promised  and 
agreed  to  be  made  by  said  party  of  the  first  part,  hereby  cove- 
nants, promises,  and  agrees  to  do  and  perform  certain  work  (in 
accordance  with  the  plans  and  specifications  hereunto  attached 
and  which  are  hereby  made  a  part  of  this  contract)  for  said  party 
of  the  first  part,  along  the  Hume  line  of  said  party  of  the  first 
part  from  said  first  party's  diverting  dam  on  the  San  Diego  riz^er 
to  its,  said  first  party's',  city  reservoir  near  San  Diego.  Said 
works  so  contracted  and  agreed  to  be  done  and  performed  by 
said  second  party  hereto  for  said  first  party  to  consist  as  follows : 

FIRST — GRADING. 

Grading,  Hume-hed,  surface  ditches,  and  tunnel  approaches 
from  first  party's  diverting  dam  on  San  Diego  river  to  its,  said 
first  party's,  proposed  city  reservoir  near  San  Diego. 

SECOND TUNNELS. 

Excavating  of  about  three  thousand  lineal  feet  of  tunnels  and 
lining  of  same  with  masonry,  and  also  timbering  same,  in  ac- 
cordance with  plans  and  specifications  hereto  attached. 

It  is  hereby  expressly  agreed  and  understood  by  and  on  the 
part  of  the  second  party  hereto,  that  if  in  the  opinion  of  the  chief 
engineer  of  said  first  party  hereto,  or  his  assistant,  .any  work 
under  this  contract  is  improperly  done  or  improper  materials 
used  therein,  the  same  shall  be  immediately,  upon  instructions  of 
said  chief  engineer,  or  his  assistant,  to  said  second  party,  be  re- 
placed and  removed  in  accordance  with  said  instructions. 

It  is  further  expressly  agreed  by  and  on  the  part  of  said  second 
partv  hereto,  that  said  first  party  shall  have  the  right  to  cJui7tge 
the  line  or  grade  or  fiume-bed  or  tunnels  at  any  time  such  change 
is  recommended  by  its,  said  first  party's,  chief  engineer. 

It  is  further  agreed  by  said  party  of  the  second  part  hereto, 
that  he,  said  second  party,  will  furnish  and  provide  at  his  oivn 
cost  all  tools  and  implements  of  every  kind  and  description  used 
in  and  about  said  work,  and  also  all  material  used  and  employed 


Contracts.  127 

in  its  construction  other  than  himljcr  for  tunnel  h'ning,  and  also 
all  lime  and  cement  required  to  be  used,  in  accordance  with  speci- 
fications hereto  attached,  which  said  lumber,  lime,  and  cement 
said  first  party  hereto  agrees  to  furnish  and  deliver  free  of  cost  to 
said  second  party  hereto  upon  the  ground  where  same  is  of  easy 
access  to  said  second  party,  and  where  same  can  without  un- 
usual delay  be  delivered  by  said  first  party. 

Said  second  party  hereto  hereby  agrees  to  furnish  at  his  own 
cost  ample  and  suitable  protection  from  damage  by  weather  for 
all  lime  and  cement  delivered  as  aforesaid  to  said  party  of  the 
second  part. 

In  case  of  any  damage  to  any  portion  of  wurk  done  under  this 
contract  by  reason  of  freshets,  rains,  or  accidents,  or  any  cause 
whatsoever,  before  final  acceptance  of  said  work  by  the  chief 
engineer  of  said  first  party,  said  second  party  shall  and  will  at 
his  own  proper  cost  and  expense  fully  repair  the  same. 

It  is  hereby  further  expressly  agreed  by  and  on  behalf  of  said 
second  party  hereto,  that  no  part  of  work  under  this  contract 
shall  he  sublet  without  the  consent  in  writing  of  said  first  party 
hereto. 

Said  second  party  hereto  hereby  covenants  and  agrees  to  hold 
harmless  said  first  party  herein  as  against  all  liens  and  claims  of 
laborers  and  mechanics  for  labor  done  and  materials  furnished 
under  this  contract,  and  hereby  grants  to  said  first  party  the  op- 
tion, within  its,  said  first  party's,  discretion,  through  its  duly  ac- 
credited agent,  to  be  present  at  the  payment  of,  and  ascertain 
that  all  wages  of  employees  of  the  contractor  herein — i,  e.,  the 
party  of  the  second  part — and  all  sums  of  money  due  subcon- 
tractors, if  any,  and  all  sums  of  money  due  for  materials  fur- 
nished, are  paid  from  the  amounts  to  be  paid  on  the  monthly  and 
also  on  the  final  estimates,  before  paying  over  to  said  second 
p)arty  herein  any  balance  that  may  be  due  hereunder. 

Said  second  party  hereto  hereby  covenants  and  agrees  to  begin 
work  under  this  contract  within  ten  days  from  date  hereof,  and 
to  complete  same  on  or  before  the  first  day  of  November,  ipo^; 
and  in  case  of  failure  of  said  second  party  thereto  to  diligently 
prosecute  work  under  said  contract,  or  according  to  specifica- 
tions, or  fails  to  hold  harmless  said  first  party  hereto  as  against 
all  and  every  lien  of  laborers,  mechanics,  and  for  materials  fur- 
nished, said  first  party  herein  is  hereby  granted  the  right,  upon 
written  notice  to  said  second  party,  to  cancel  said  contract,  and 
to  complete  under  its  own  direction  the  work  herein  contracted  to 
be  done,  or  to  contract  anew  therefor,  as  in  its  judgment  shall  be 
deemed  proper,  and  to  declare  forfeited,  as  stipulated  and  liqui- 
dated damages  for  the  nonperformance  of  the  covenants  and 
agreements  herein  contained,  the  unpaid  balance  and  all  thereof, 
then  and  at  the  date  of  said  written  notice  in  the  hands  of  said 
first  party  herein. 


128  New  Book  of  Forms. 

Said  second  party  hereto  hereby  further  covenants  and  agrees 
to  hold  harmless  said  first  party  herein  as  against  all  damages 
at  law  resulting  from  any  accident  or  accidents  to  men  in  his, 
said  second  party's,  employ  under  this  contract. 

Said  first  party  herein  further  covenants  and  agrees  to  provide 
all  right  of  way  along  its  heretofore  mentioned  flume  line  as  ex- 
peditiously as  possible,  and  said  second  party  hereto  hereby  cove- 
nants and'  agrees  to  hold  said  first  party  harmless  in  case  of  fail- 
ure to  provide  the  necessary  right  of  way  caused  by  any  delay 
resulting  from  legal  proceedings  to  procure  the  same. 

And  for  and  in  consideration  of  the  foregoing  covenants,  prom- 
ises, and  conditions  on  the  part  and  on  behalf  of  said  second  party 
hereto  to  be  kept  and  performed,  said  first  party  hereto  hereby 
promises  and  agrees  as  follows,  to  wit   : 

To  pay  to  said  second  party  as  herein  set  forth : 

For  mason  work,  per  perch  of  i6  1-2  cubic  feet    $  2  00 

For  concrete  work,  per  cubic  foot 40 

For  earth  work,  per  cubic  yard ^5 

For  all  gravel  and  cement,  per  cubic  yard 50 

For  grading  of  surface  rock,  per  cubic  yard. ...  12^ 

For  approaches  to  tunnels,  per  cubic  yard i  00 

For  approaches  to  tunnels,  hard  rock,  per  cubic 

yard    2  00 

Running  tunnels  (3,000  feet,  more  or  less),  per 
lineal  foot  (size  thereof  as  per  plan  "A"  to 

set  contract  attached) 15  00 

Timbering  tunnels,  per  lineal  foot 40 

Said  first  party  hereto  hereby  reserves  the  right,  and  said  right 
is  hereby  conceded  by  said  second  party,  to  change,  alter  or  mod- 
ify the  shape  of  all  tunnels  to  be  run,  and  to  enlarge  or  decrease 
in  size  the  same  as  the  chief  engineer  of  said  first  party  may  di- 
rect, and  said  party  of  the  first  part  shall  pay  an  amount  per 
lineal  foot  for  said  tunnel  work  as  the  changed  or  altered  "size 
thereof  shall  bear  to  the  annexed  plan,  marked  plan  "A,"  and 
said  heretofore  mentioned  sum  or  rate  of  $15  per  lineal  foot. 

Payments  for  the  foregoing  work  to  be  made  by  said  first  party 
to  said  second  party  as  follows : 

Fifty  (§0)  per  cent  cash,  on  estimates  to  be  made  monthly,  on 
or  about  the  first  of  each  and  every  month,  until  the  completion 
of  said  work  [state  the  agreements  as  to  payments^. 

In  witness  whereof,  said  party  of  the  first  part,  by  its  president 
and  secretary  thereunto,  first  duly  authorized,  has  caused  its  cor- 
porate name  and  seal  to  be  attached  hereto,  and  said  party  of  the 
second  part  has  set  his  hand  and  seal  the  day  and  year  first  above 
writteru 


Contracts.  129 


SPECIFICATIONS. 

GRADING. 

Under  this  head  is  included  all  excavations  and  embankments 
required  for  the  formation  of  the  flume-bed  pits  for  trestle  bents, 
surface  ditches,  tunnel  approaches,  and  the  crossing  or  change  of 
wagon  roads. 

All  cuttings  shall  be  measured  in  the  excavations  and  estimated 
by  the  cubic  yard  under  the  following  heads: 

EARTH. 

Will  include  all  excavations,  irrespective  of  the  material,  except 
the  same  be  gravel,  cement,  surface  or  Itard  blasting  rock  in  quan- 
tity and  at  any  one  place  of  more  than  thirty  (^0)  cubic  yards. 

HARD  ROCK. 

Will  include  all  hard  blasting  rock  occurring  in  quantity  at  any 
one  place  exceeding  thirty  cubic  yards. 

The  Hume-bed  zvill  be  graded  twelve  (12)  feet  wide,  and  with 
such  slopes  as  the  engineer  may  designate. 

All  material  excavated  (except  liard  rock)  shall  be  wasted  at 
least  three  feet  beyond  slope  of  cuts,  and  outside  line  of  timber 
work  for  flume,  and  on  the  lower  side  of  the  flmne  line,  which 
shall  be  designated  by  the  engineer. 

The  hard  rock  excavated  must  be  deposited  in  the  adjacent  em- 
bankmcnts  when  the  haul  does  not  exceed  one  hundred  (lOo) 
feet.  Large  boulders  not  broken  up  and  difficult  to  move  may 
be  wasted. 

Boulders  or  other  material  above  the  Hume  line  which  the  en- 
gineer may  consider  will  endanger  the  Hume  must  be  removed, 
and  will  be  paid  for  at  contract  price  for  similar  material. 

Public  roads  must  be  kept  open  and  not  obstructed  or  endan* 
gcred  by  any  of  the  material  handled  in  grading,  and  due  notice 
given  teams  and  travelers  on  public  roads  when  blasts  that  might 
endanger  them  are  about  to  be  set  off. 

TUNNELS. 

Tunnels  must  be  excavated  to  the  lines  as  shcnvn  on  the  draw- 
ings of  the  cross-sections  and  be  lined  or  left  without  lining,  as 
the  engineer  may  direct. 

Tunnel  work  will  be  classified  as  follows: 

First.  Tu)nicl  excavation  in  earth  will  include  all  material 
excavated,  except  tlie  same  be  in  hard  blasting  rock. 

Second.     Tunnel  excavation  in  hard  blasting  rock. 

Third.     Stone  maso)iry  will  include  the  stone  work  in  tne  por- 
tals and  walls  of  tunnel  lining  and  plastering  the  same. 
New  Forms — 9 


130  New  Book  of  Forms. 

Fourth.  Concrete  zvill  include  the  concrete  work  in  bottom  of 
tunnels,  aUo  the  lining  of  the  sides  of  tunnels  in  Ixard  rock  and 
plastering  the  same. 

Fifth.  Tunnel  timbering  will  include  the  timber  lining  and 
lagging  of  roof  above  the  stone  masonry,  as  shown  on  plans  here- 
after, at  the  option  of  the  engineer,  to  be  submitted  and  adopted. 

The  tunnel  excavation  will  be  estimated  by  the  lineal  foot,  and 
will  include  the  length  contained  between  the  two  portals. 

Stone  masonry  and  concrete  work  will  be  estimated  by  the  cubic 
yard. 

Tunnel  timbering  zvill  be  estimated  by  the  lineal  foot  of  tunnel 
for  the  portion  that  may  be  timbered. 

Where  the  tunnels  require  lining  the  general  form  of  masonry 
will  be  as  shozun  on  the  draivings  hereafter,  at  the  option  of  the 
engineer,  to  be  submitted  and  adopted,  or  increased  in  thickness, 
as  the  engineer  in  his  judgment  may  deem  necessary. 

The  stone  masonry  in  portals  and  tunnel  lining  zvill  be  of 
broken  range  rubble  work,  of  good  quality,  laid  in  mortar,  to  be 
well  bonded  and  leveled. 

The  arch  portals  to  be  built  at  each  end  of  tunnels,  and  arch 
carried  ten  feet  or  less  inside  of  tunnel. 

The  zuhole  inside  surface  of  the  stone  masonry  to  be  plastered 
smooth  zmth  one  coat  of  fine  cement  mortar. 

Any  spaces  remaining  between  the  walls  or  lagging  and  inside 
of  tunnels  as  excavated  to  be  completely  tilled  as  the  zvork  pro^ 
gresses  zvith  dry  rubble  or  other  material,  solidly  tamped  in  and 
acceptable  to  the  engineer. 

The  proportions  of  sand,  cement  and  lime  in  the  mortar  used 
and  of  material  for  concrete,  as  well  as  the  manner  of  mixing 
the  same  and  putting  it  in  the  work,  shall  be  as  directed  by  the 
engineer. 

In  all  cases  where  the  word  "engineer"  is  used,  tlxe  engineer 
in  charge  of  construction  is  meant,  but  the  directions  of  any  subor- 
dinate engineer  shall  be  obeyed  when  transmitting  the  orders  of 
his  superiors. 

Specifications  accompanying  contract  tjiis  day  signed. 

See  plan  "A,"  attached  to  original  contract  on  file  in  office  of 
San  Diego  Flume  Company.* 

The  following  notes  refer  to  general  and  special  business  contracts, 
and  moral  obligations. 

Creation  of  Contracts. — To  make  a  lawful  contract,  parties  capable  of 
contracting  are  necessary,  and  a  good  consideration  and  object,  as  well 
as  mutual  consent.  There  must  not  be  fraud,  undue  influence,  or  mis- 
take. All  the  parties  must  agree  to  the  same  thing.  If  there  is  a 
material  misunderstanding  as  to  the  terms  of  the  contract  neither  party 
is   liable:   Loaiza   v.   Superior   Court,   8-5   Cal.   11,   20   Am.   St.   Rep.    197, 


*See   under   head    "Liens"   full   notes   relating   to   contracts   sucli    as 
tLe  above  and  others. 


Contracts,  131 

24  Pae.  707,  9  L.  "R.  A.  376;  Mcux  v.  Hogue,  91  Cal.  442,  27  Pac. 
744.  If  there  is  a  mutual  misunderstanding  as  to  the  amount  of  the 
consideration,  there  is  no  contract:  Eovegno  v.  DeflFerari,  40  Cal.  4.o9. 
In  every  contract  it  is  essential  that  all  parties  must  assent  to  the 
subject  matter  in  the  same  sense:  Harvey  v.  Duffey,  99  Cal.  401,  33  Pac. 
8!'7;  Yore  v.  Bankers'  Life  Assn.,  88  Cal.  609,  26 'Pac.  514.  If  an  ofTer 
is  withdrawn  before  it  is  accepted,  there  is  no  contract:  Martin  v.  Hud- 
son, 81  Cal.  42,  22  Pac.  292. 

An  offer  to  do  a  valuable  service  for  another,  provided  he  complies 
with  certain  condition?  mentioned  in  the  offer,  is  not  a  contract  unless 
the  conditions  are  complied  with:  Northam  v.  Gordon,  46  Cal.  582.  And 
when  the  services  have  been  rendered,  although  there  was  no  contem- 
ptraneous  agreement  to  perform,  the  promisor  is  liable:  Nevada  Bank  v. 
Steinmitz,  64  Cal.  301,  30  Pac.  970;  Mathewson  v.  Fitch,  22  Cal.  86. 
A  contract  must  always  be  mutually  binding:  Doe  v.  Culverwell,  35  Cal. 
291. 

Consideration. — Neither  a  promise  to  perform  a  duty  .  .r  the  perform- 
ance of  a  duty  is  a  good  consideration  for  a  contract.  Agreement  with- 
out consideration  cannot  be  enforced:  Sullivan  v.  Sullivan,  99  Cal.  187, 
33  Pac.  862.  A  pre-existing  debt  is  a  sufficient  consideration :  Davis 
v.  Russell,  52  Cal.  611,  28  Am.  Rep.  647;  and  so  is  the  cancellation  of  a 
pre-existing  debt:  Schluter  v.  Harvey,  65  Cal.  158,  3  Pac.  659. 

It  is  necessary  that  some  advantage  to  the  promisor  or  injury  to  the 
promisee  should  occur.  It  must  be  a  present  and  unexecuted  considera- 
tion: Comstock  V.  Breed,  12  Cal.  286. 

Extension  of  time  to  pay  a  debt  is  a  valuable  consideration  for  a 
promise:  Burkle  v.  Levy,  70  Cal.  250,  11  Pac.  643.  Mutual  promises  are 
concurrent  considerations,  and  will  support  each  other  unless  one  or  the 
other  is  void:  Siddall  v.  Clark,  89  Cal.  321,  26  Pac.  829.  An  outstand- 
ing liability  as  surety  or  indorser  for  another  is  a  good  consideration 
for  a  promise:  Gladwin  v.  Garrison,  13  Cal.  330.  Information  possessed 
by  a  promisee  respecting  the  title  to  land  is  a  good  consideration  for  a 
promise  to  pay  for  such  information:  Lucas  v.  Pico,  55  Cal.  136.  If  a 
cliattel  is  of  no  value  it  is  not  a  good  consideration  for  a  contract: 
Gififord  V.  Carvill,  29  Cal.  589.  Any  prejudice  suffered  is  sufficient  con- 
sideration: Golden  Gate  Iron  Works  v.  Angell,  89  Cal.  643,  27  Pac.  65. 
A  valuable  consideration  means  a  pecuniary  consideration  or  its  equiva- 
lent, as  distinguished  from  a  good  consideration,  and  has  no  reference 
to  the  adequaev  of  the  price  to  the  value  of  the  property  conveyed: 
Clark  V.  Troy,  20  Cal.  219. 

Paternal  Atlection  and  Moral  Obligation. — Those  considerations  are 
now  and  always  probably  have  been,  and  it  is  hoped  forever  will  be, 
considerations  sufficient  to  support  any  reasonable  promise,  formal  con- 
tract, or  gift.  All  the  foregoing  is  not  actually  said,  but  is  clearly 
implied  in  Nicolas  v.  Emery,  109  Cal.  323,  50  Am.  St.  Rep.  43,  41  Pac. 
1089;  Praser  v.  San  Francisco  Bridge  Co.,  103  Cal.  79,  36  Pac.  1037; 
Barnes  v.  Barnes,  10  Cal.  418.  The  moral  obligation  a  person  is  under 
to  pay  a  debt  barred  by  statute  is  a  good  consideration  for  a  promise: 
Zellerbach  v.  Allenberg,  99  Cal.  57,  33  Pac.  786.  See,  also,  McCormick 
V.  Brown,  36  Cal.  108,  95  Am.  Dec.  170.  If  an  insolvent,  after  his  dis- 
charge,  expressly  promises  his  creditor  to  pay  his  debt,  the  debt  is  a 
Bullicicnt  consideration  to  support  the  promise:  Feeny  v.  Daly,  8  Cal.  84. 

In  California  a  written  contract  imports  a  consideration:  C.  C,  sees. 
1614,  1615;  Williams  v.  Hall,  79  Cal.  606,  21  Pac.  9(55.  A  written  con- 
tract need  not  recite  a  consideration.  If  the  consideration  is  denied, 
the  plaintiff  must  establish  a  consideration  sufficient  to  support  his  con- 
tention: Peasley  v.  McFadden,  68  Cal.  Oil,  10  Pac.  179.  In  Poirier  v. 
Gravel,  88  Cal.  79,  25  Pac.  962,  it  is  said  that  a  written  instrument  is 
presumptive  evidence  of  a  consideration,  and  the  burden  of  showing  a 


132  New  Book  of  Forms. 

want  of  consideration  sufficient  to  support  it  is  upon  the  party  seeking 
to  Mvoitl  it.  The  same  was  said  in  Rogers  v.  Schulenburg,  111  Cal.  281, 
43  Pac.  899. 

Signature — Mark. — If  the  contract  is  intended  to  be  signed  by  several 
persons  as  parties  to  it,  it  does  not  bind  any  until  all  kave  signed: 
Barber  v.  Burrows,  51  Cal.  404.  If  a  party  is  to  do  something  in  the 
future  in  consideration  of  a  conveyance  already  made  to  him  by  the 
other  party,  the  contract  need  only  to  be  signed  by  the  party  who  is 
to   perform   thereafter:    Luckhart  v.   Ogden,  30   Cal.   547. 

If  a  third  person  signs  a  party's  name  at  his  request,  in  his  presence, 
and  if  he  acknowledges  the  signature  to  be  his  own,  it  is  sufficient; 
and  it  is  the  same  even  if  the  party  was  able  to  write  his  own  name: 
Harris  v.  Harris,  59  Cal.  620. 

The  words,  "When  a  person  cannot  write,"  as  they  appear  in  sec- 
tion 14  of  the  Civil  Code,  seem  to  include  all  persons  who  are  unable 
to  ^Tite  from  any  cause,  even  though  they  know  how  to  write.  Under 
section  14  of  the  Civil  Code  a  signature  by  mark  must  be  written  near 
the  mark  to  show  which  or  what  name  the  mark  was  intended  to  repre- 
sent: Will  of  Guilfoyle,  96  Cal.  598,  31  Pac.  553,  22  L.  E.  A.  370. 

If  the  instrument  contains  words  of  obligation  on  the  part  of  the 
maker,  he  cannot  excuse  himself  by  claiming  that  he  signed  it  without 
reading:  Yoch  v.  Home  Mutual  Ins.  Co.,  Ill  Cal.  503,  44  Pac.  189.  The 
term  "signature"  or  "subscription"  includes  mark  when  the  person 
cannot  write,  his  name  being  written  near  it,  and  written  by  a  person 
who  writes  his  own  name  as  a  witness:  C.  C.  P.,  sec.  14. 

In  Duplicate. — A  contract  to  convey  land  executed  in  duplicate  is  one 
instrument,  which  does  not  take  effect  until  one  of  the  duplicates  is 
delivered  to  the  party  to  whom  the  land  is  to  be  conveyed:  Ivey  v. 
Kern  Co.  Land  Co.,  115  Cal.  196,  46  Pac.  926. 

Kevenue  Stamp. — The  omission  of  a  United  States  internal  revenue 
stamp  caunot  be  set  up  as  a  defense  in  a  state  court  to  an  action  on  a 
contract:  Thomasson  v.  Wood,  42  Cal.  416. 

Options. — An  option  given  to  a  person  who  proposes  to  sell  land  upon 
certain  terms,  of  which  option  he  gave  the  person  signing  it  no  notice 
of  accej^tance,  and  if  no  consideration  was  paid  for  the  option,  and 
which  he  is  free  to  exercise  or  not,  is  a  mere  continual  proposal  which 
may  be  withdrawn  by  the  maker  at  any  time  before  notice  of  accept- 
ance is  given;  and  after  notice  of  withdrawal  the  option  cannot  be 
exercised:  Brown  v.  San  Francisco  Sav.  Union,  134  Cal.  448,  66  Pac.  592. 

Retraction  of  Offer. — A  contract  to  deliver  anything  of  value  and  as 
much  as  is  wanted  is  nothing  but  an  offer,  and  may  be  withdrawn  before 
acceptance,  but  if  the  person  to  whom  the  offer  is  made  names  the  quan- 
tity he  will  take,  both  parties  are  bound:  Keller  v.  Ybarra,  3  Gal.  147, 
Such  offers  must  be  accepted  at  once.  It  has  been  held  that  six  months' 
delav  is  unreasonable:  Roberts  v.  Evans,  43  Cal.  380.  See,  also,  Harvey 
V.  Duffey,  99  Cal.  401,  33  Pac.  897. 

Delivery. — The  words  "has  executed"  or  has  "executed  unto,"  when 
applied  to  instruments  in  writing,  imports  both  making  and  delivery: 
Bagley  v.  Administrator  of  McMickle,  9  Cal.  430;  Le  Mesnager  v.  Ham- 
ilton, 101  Cal.  532,  40  Am.  St.  Rep.  81,  35  Pac.  1054.  The  word  "execu- 
tion" of  a  written  instrument  includes  its  delivery:  Clark  v.  Child,  66 
Cal.  87,  4  Pac.  1058.  A  finding  that  a  lease  was  executed  includes  its 
delivery- :  Oneto  v.  Restano,  89  Cal.  63,  26  Pac.  788.  If  it  is  apparent 
that  the  word  "execute"  was  used  as  the  mere  synonym  of  "sign," 
delivery  is  not  imported:  Davidson  v.  Ellmaker,  84  Cal.  21,  23  Pac.  1026. 

Supplemental  Contracts —Consideration. — A  supplemental  agreement 
either  adding  to  or  varying  the  terms  of  the  original  contract,  so  aa  to 


Contracts.  133 

Impose  now  and  onerous  burdfMis  upon  one  of  the  parties,  requires  a 
consideration  to  support  it.  A  favorable  modification  or  a  release  of 
previous  oblifi^ations  would  be  a  consideration:  Main  St.  R.  R.  Co.  v. 
Los  An^rolcs  Traction  Co.,  129  Cal.  301,  61  Pac.  937. 

Negligent  Omissions. — If  the  parties  are  upon  equal  footing,  and  there 
is  no  fraud,  and  no  relations  of  confidence,  and  if  the  means  of  knowl- 
edge are  equally  open  to  both,  an  obligor  who  nrgiigcntly  omits  to  read 
the  contract  or  to  have  it  read  cannot  be  relieved  from  his  folly  by  the 
courts:  Placer  County  Bank  v.  Freeman,  126  Cal.  90,  58  Pac.  383. 

No.  157. — Contract — -Not  Special. 

This  acrrcement.  made  the  ninctccnih  clay  of  June,  in  the  year 
of  our  Lord  one  thousand  nine  hundred  and  iive,  between  J .  D., 
of  the  city  and  county  of  San  Francisco,  state  of  California,  the 
party  of  the  first  part,  and  R.  R.,  of  tJic  same  place,  the  party  of 
the  second  part,  witnesseth : 

That  the  said  party  of  the  first  part,  in  consideration  of  the 
covenants,  on  the  part  of  the  said  party  of  the  second  part,  here- 
inafter contained,  hereby  covenants,  with  the  said  party  of  the 
second  part,  that  the  said  party  of  the  first  part  will  deliver  to 
the  said  party  of  the  second  part,  at  his  storehouse  in  said  city 
and  county  of  Sa)}  Francisco,  one  thousand  (1,000)  bushels  of 
wheat,  of  good  merchantable  quality,  on  or  before  the  tenth  day 
of  October,  A.  D.  190^. 

And  the  said  party  of  the  second  part,  in  consideration  of  the 
said  covenants,  on  the  part  of  the  said  party  of  the  first  part, 
hereinbefore  contained,  agrees  to  and  with  the  said  party  of  the 
first  part,  that  the  said  party  of  the  second  part  will  pay  to  the 
said  party  of  the  first  part,  or  his  order,  one  dollar  in  United 
States  gold  coin,  for  each  and  every  bushel  of  said  wheat  so 
deliver<:d,  immediately  on  the  completion  of  the  delivery  of  said 
one  thousand  bushels  of  zvheat  in  good  order  and  condition,  as 
aforesaid. 

And  for  the  true  and  faithful  performance  of  all  and  every  of 
the  said  covenants,  the  said  parties  to  these  presents  bind  them- 
selves, each  unto  the  other,  in  the  penal  sum  of  three  hundred 
(300)  dollars,  gold  coin  of  the  United  States  of  America,  as  fixed, 
settled,  rnd  liquidated  damages,  to  be  paid  by  the  failing  party, 
to  the  other,  his  heirs  or  a^sigiis. 

No.    158. — Builder's    Contract. 

This  agreement,  made  the  tenth  day  of  January,  one  thousand 
nine  hundred  and  live,  between  H.  IV.,  the  party  of  the  first  part, 
and  /.  S.,  the  party  of  the  second  part : 

First.  The  said  party  of  the  second  part  does  hereby  promise 
and  agree,  with  and  to  the  said  party  of  the  first  part,  his  execu- 
tors, administrators,  and  assigns,  that  he,  the  said  party  of  the 
second  part,  will,  for  the  consideration  hereinafter  mentioned  on 


134  New  Book  of  Forms. 

or  before  the  third  day  of  January,  igo6,  well  and  truly  huild, 
erect  and  finish  the  building  hereinafter  described,  conformable 
to  the  drawings  and  specifications  made  by  C.  F.,  architect,  and 
signed  by  the  parties,  and  hereunto  annexed,  within  the  time 
aforesaid,  in  a  good  workmanlike  and  substantial  manner,  to  the 
satisfaction  and  under  the  direction  of  the  said  C,  to  be  evidenced 
by  a  writing  or  certificate  under  the  hand  of  the  said  F.,  and,  also, 
shall  and  will  find  and  provide  good  and  sufficient  materials,  of 
all  kiiuls  whatsoever,  as  shall  be  proper  and  sufficient  for  com- 
pleting and  finishing  all  the  foundations,  cxsavations,  building 
materials  of  every  description  used  in  or  about  it  so  as  to  make 
it  a  perfect  building  according  to  said  drawings  and  specifications 
and  other  works  of  said  building  mentioned  in  the  said  drawings 
and  specifications  for  the  sum  of  sixteen  thousand  seven  hun- 
dred dollars.  And  the  said  party  of  the  first  part  does  hereby 
covenant,  promise  and  agree  with  and  to  the  said  party  of  the 
second  part,  that  when  said  building  is  completed,  the  said  party 
of  the  first  part  will  in  consideration  of  the  covenants  and  agree- 
ments being  strictly  performed  and  kept  by  the  said  party  of 
the  second  part  as  specified  well  and  truly  pay,  or  cause  to  be 
paid,  unto  the  party  of  the  second  part,  the  said  sum  of  sixteen 
thousand  seven  hundred  dollars  of  the  United  States  of  America. 

In  the  manner  following:  When  the  zvalls  are  up  and  ready  for 
the  roof,  one-fourth  of  the  contract  price;  when  the  roof  is  on 
and  the  floors  laid,  one-fourth  of  the  contract  price;  when  the 
building  is  finished,  one-fourth  of  the  contract  price,  and  within 
sixty  days  from  the  date  of  the  third  payment  the  balance  due 
to  be  paid. 

Provided  that  in  each  of  the  said  cases  a  certificate  be  obtained 
and  signed  by  the  said  architect. 

And  it  is  hereby  further  agreed  by  and  between  the  said  par- 
ties: 

First.  The  specifications  and  drawings  are  intended  to  co- 
operate, so  that  any  works  exhibited  in  the  drawings  and  not 
mentioned  in  the  specifications,  or  vice  versa,  are  to  be  executed 
the  same  as  if  it  were  mentioned  in  the  specifications  and  set  forth 
in  the  drawings,  to  the  true  meaning  and  intention  of  the  said 
drawings  and  specifications. 

Second.  The  contractor,  at  his  own  proper  cost  and  charges, 
is  to  provide  all  materials,  labor  and  all  other  things  of  every  de- 
scription, for  the  performance  of  the  several  erections. 

Third.  Should  the  owner,  at  any  time,  order  alterations,  de- 
viations, additions  or  omissions,  from  the  said  contract,  specifi- 
cations or  plans,  he  shall  be  at  liberty  to  do  so  and  the  same  will 
be  added  to  or  deducted  from  the  amount  of  the  said  contract 
price,  as  the  case  may  be,  by  a  fair  and  reasonable  valuation. 

Fourth.  Should  the  contractor,  at  any  time  during  the  prog- 
ress of  said  works,  refuse  or  negiect  to  stqpf^  a  sufficiency  of  ma- 


Contracts.  135 

terials  or  workmen,  the  owner  shall  have  the  power  to  provide 
materials  and  workmen  (after  three  days'  notice  in  writing 
given)  by  leaving  the  writing  at  the  last  known  residence  or 
place  of  business  of  the  contractor,  to  finish  said  works,  and  the 
expenses  of  finishing  said  works  shall  be  deducted  from  the 
amount  of  the  said  contract  price. 

Fifth.  Should  any  dispute  arise  respecting  the  meaning  of  the 
drawings  or  specifications,  the  same  shall  be  decided  by  the  archi- 
tect, builder  and  owner,  and  their  decision  shall  be  final,  but  should 
any  dispute  arise  respecting  the  value  of  the  extra  work  or  works 
omitted,  the  same  shall  be  valued  by  two  men — one  selected  by 
the  owner,  and  the  other  by  the  contractor — and  in  case  they  can- 
not agree,  these  two  shall  have  power  to  name  an  umpire,  whose 
decision,  if  agreed  to  by  one  of  the  two  shall  be  final. 

Sixth.  The  owner  shall  not,  in  any  manner,  be  answerable  or 
accountable  for  any  loss  or  damage  that  shall  or  may  happen  to 
the  said  works,  for  any  part  or  parts  thereof  respectively,  or  for 
any  of  the  materials  or  other  things  used  and  employed  in  finish- 
ing and  completing  the  same. 

Seventh.  If  delay  in  completing  said  structure  is  caused  by 
strikes,  or  by  the  acts  of  God,  the  time  lost  thereby  shall  be  added 
to  the  time  for  completion  of  this  contract. 

Eighth.  All  payments  shall  be  upon  the  certificate  of  the  archi- 
tect, and  this  contract  is  completed  when  the  work  is  finished  in 
accordance  with  the  original  plans  as  modified  by  alterations  of 
the  original  plans. 

No.  159. — Bond  (Attaches  to  Builder's  Contract). 

Know  .^ll  Men  bv  These  Presents:  That  ice,  J.  S.,  as  prin- 
cipal, and  H.  B.  and  J.  E.  are  held  and  firmly  bound  unto  H.  IV. 
in  the  sum  of  ten  thousand  dollars,  gold  coin  of  the  United  States 
of  America,  to  be  paid  to  the  said  H.  W.,  for  which  payment  well 
and  truly  to  be  made,  we  bind  ourselves  firmly  by  these  presents. 
Scaled  with  our  seals  and  dated  the  tenth  day  of  January,  one 
thousand  nine  hundred  and  five. 

The  condition  of  the  above  obligation  is  such,  that  [state  the 
substance  of  the  contract,  time  of  payments,  amounts,  etc.],  then 
the  above  obligation  to  be  void,  otherwise  to  remain  in  full  force 
and  virtue. 

No.    160. — Contract — Building. 

This  agreement,  made  the  tenth  day  of  July,  one  thousand  nine 
hundred  and  four,  by  and  betzveen  J.  D.,  of  Amador  City,  in  the 
county  of  Amador,  and  state  of  California,  of  the  first  part,  and 
R.  R.,  of  the  said  A)nador  City,  of  the  second  part,  in  these  words: 

The  said  party  of  the  second  part  covenants  and  agrees  to  and 
with  the  said  party  of  the  first  part,  to  make,  erect,  build,  and 


136  New  Book  of  Forms. 

finish,  in  a  good,  substantial,  and  workmanlike  manner  a  hvo- 
sfory  brick  dzvelling-housc,  on  the  lot  of  land  situate  in  said 
county,  and  described  as  follows:  [Description  of  lot.]  Agree- 
able to  the  drafts,  plans  and  specifications  hereunto  annexed,  of 
good  and  substantial  materials,  by  the  iirst  day  of  January  next. 

And  the  said  party  of  the  first  part  covenants  and  agrees  to  pay 
unto  the  said  party  of  the  second  part,  for  the  same,  the  sum  of 
ftt'o  thousand  dollars,  gold  coin  of  the  United  States,  as  follows : 
The  sum  of  one  thousand  dollars  ivhen  the  building  is  inclosed 
and  the  roof  put  on,  and  the  remaining  one  thousand  dollars  when 
the  building  is  completed. 

And  for  the  true  and  faithful  performance  of  all  and  every  of 
the  covenants  and  agreements  above  mentioned,  the  parties  to 
these  presents  covenant  and  agree,  each  with  the  other,  that  the 
sum  of  one  thousand  dollars,  gold  coin  of  the  United  States,  as 
fixed,  settled,  and  liquidated  damages,  shall  be  paid  to  the  other 
by  the  failing  party. 

NOTE. — Under  head  "Liens,"  see  full  notes  relating  to  such  con- 
tracts. 

No.  161. — Contract  with  a  Mason. 

This  agreement,  made  the  nijtth  day  of  September,  A.  D.  one 
thousand  nine  hundred  and  four,  between  A.  B.,  of  Oakland,  Ala- 
meda county,  and  C.  D.,  of  the  city  and  county  of  San  Francisco, 
witnesseth : 

That  the  said  C.  D.,  for  the  consideration  hereinafter  men- 
tioned, premises  and  agrees,  to  and  with  the  said  A.  B.,  that  he 
will  do  and  perform,  by  himself  or  persons  in  his  employ,  in  a 
good  and  workmanlike  manner,  and  with  materials  to  be  fur- 
nished by  the  said  A.  B.,  all  the  mason  and  plastering  work  to  be 
done  in  and  about  the  erecting  and  building  a  new  dwelling- 
house  on  the  Hfty-vara  lot  No.  124  of  the  said  A.  B.,  at  fwrtheast 
corner  of  California  and  Webster  streets,  in  the  city  of  San  Fran- 
cisco, according  to  the  plans  and  specifications  hereto  annexed; 
and,  also,  that  he  will  use  the  utmost  care  in  working  up  the 
materials  to  be  furnished  by  the  said  A.  B.,  as  aforesaid,  to  the 
best  advantage  for  tlie  said  A.  B.,  and  that  he  will  complete  the 
said  work  on  or  before  the  first  day  of  December,  IP04. 

And  the  said  A.  B.,  in  consideration  of  the  premises,  agrees  to 
furnish  and  provide  good  and  sufficient  materials  for  the  said 
work,  at  such  time  or  times  as  the  said  C.  D.  may  request;  and 
to  pay,  in  gold  coin  of  the  United  States,  the  said  C.  D.,  for  all 
such  work  as  shall  be  performed  by  him  or  his  servants  in  and 
about  the  said  new  dwelling-house,  ornamental  work  excepted, 
on  the  completion  of  the  same,  at  and  after  the  rate  of  ^fty  cents 
per  yard  of  three  feet  square,  and  the  sxxm  of  six  hundred  dollars 


Contracts.  137 

for  all  the  ornamental  work  clone  or  performed  in  and  about  the 
said  dwellinp^-house — it  beinp^  expressly  understood  and  ac^reed, 
that  no  extra  charg^e  is  to  be  demanded  or  allowed  for  corners, 
arches,  jambs,  joints,  fireplaces,  or  any  other  kind  of  work  not 
strictly  ornamental,  but  all  the  work  is  to  be  measured  as  plain, 
except  the  ornamental  work  to  be  paid  for,  as  aforesaid,  in  gross. 

No.    162. — Contract  Forming   Copartnership. 

Articles  of  copartnership,  made  and  entered  into  the  tiventy- 
first  day  of  December,  in  the  year  of  our  Lord  one  thousand  nine 
hundred  and  five,  between  /.  H.,  of  the  city  and  county  of  San 
Francisco,  state  of  California,  C.  H.,  of  said  city  and  county,  and 
J.  S.,  of  the  same  place. 

The  said  parties  above  named  have  agreed,  and  by  these  pres- 
ents do  agree,  to  become  copartners  in  business  together,  under 
and  by  the  name,  firm,  and  style  of  "H.  &  Co.."  in  the  business 
of  groceries  and  provisions,  and  in  buying,  selling,  and  vending 
all  sorts  of  goods,  zvares,  and  merchandise  to  said  business  be- 
longing, and  to  occupy  the  store  at  No.  21^  Battery  street,  in  said 
city  and  county  of  San  Francisco;  their  copartnership  to  com- 
mence on  the  first  day  of  July,  ipo6,  and  to  continue  five  years 
thence  next  ensuing,  fully  to  be  completed  and  ended,  and  to  that 
end  and  purpose  the  said  parties  have  delivered  in  as  capital  stock 
the  sum  of  thirty  thousand  (30,000)  dollars.  United  States  gold 
coin,  share  and  share  alike,  to  be  used  and  employed  in  common 
between  them,  for  the  support  and  management  of  the  said  busi- 
ness, to  their  mutual  benefit  and  advantage. 

And  it  is  agreed,  by  and  between  the  said  parties,  that  at  all 
times  during  the  continuance  of  their  copartnership,  they  and 
each  of  them  will  give  their  attendance,  and  do  their  and  each  of 
their  best  endeavors,  and  to  the  utmost  of  their  skill  and  power 
exert  themselves,  for  their  joint  interest,  profit,  benefit  and  ad- 
vantage, and  will  buy  and  sell  merchandise  with  their  joint  stock, 
and  the  increase  thereof,  in  the  business  aforesaid ;  that  they  shall 
and  will,  at  all  times  during  their  copartnership,  bear,  pay,  and 
discharge,  equally  between  them,  all  rents  and  other  expenses 
that  may  be  required  for  the  support  and  management  of  the  said 
business ;  that  all  gains,  profits,  and  increase  that  shall  come,  grow 
or  arise  from  or  by  means  of  the  said  business,  shall  be  divided 
between  them,  share  and  share  alike ;  and  all  loss  that  shall  happen 
to  their  said  joint  business,  by  bad  debts,  or  otherwise,  shall  be 
borne  and  paid  equally  betvveen  them ;  that  there  shall  be  kept,  at 
all  times  during  the  continuance  of  their  copartnership,  perfect, 
just  and  true  books  of  accounts,  wherein  each  of  the  said  copart- 
ners shall  enter  and  set  down,  as  well  all  money  by  them,  or  either 
of  them,  received,  paid,  laid  out.  and  expended  in  and  about  the 
said  business  as  also  all  the  goods,  wares,  commodities  and  mer- 

\ 


138  New  Book  of  Forms. 

I  chandise,  by  them  or  either  of  them  bought  or  sold,  by  reason  or 
j  on  account  of  the  said  business,  and  all  other  matters  and  things 
.,  whatsoever,  to  the  said  business  and  management  thereof  in  any 
/  wise  belonging ;  which  said  books  shall  be  used  in  common  between 
',   the  said  copartners,  so  that  either  of  them  may  have  access  there- 
to without  any  interruption  or  hindrance  of  the  other;  that  the 
said  copartners,  once  in  each  year,  during  the  continuance  of  the 
said  copartnership,  as  aforesaid  (to  wit,  on  the  first  day  of  Janu- 
.  ary,  in  each  year),  or  oftener  if  necessary,  shall  make,  yield,  and 
'"^  render,  each  to  the  other,  a  true,  just  and  perfect  inventory  and 
account  of  all  the  profits  and  increase  by  them,  or  either  of  them, 
made,  and  of  all  loss,  by  them,  or  either  of  them,  sustained ;  and 
also,  of  all  payments,  receipts  and  disbursements  and  of  all  other 
things  by  them  made,  received,  disbursed,  acted,  or  suffered,*  in 
their  said  business ;  and  the  same  account  being  so  made  they 
shall  and  will  clear  and  adjust,  each  to  the  other,  at  the  time, 
their  just  share  of  the  profits  so  made  as  aforesaid  [that  during 
the  continuance  of  the  said  copartnership,  neither  of  them  shall 
or  will  indorse  any  ncte,  or  otherwise  become  security  for  any 
person  or  persons  zvhomsoever,  without  the  consent  of  the  other 
said  copartner] ;  that  at  the  end,  or  other  sooner  determination  of 
their  copartnership,  the  said  copartners,  each  to  the  other,  shall 
and  will  make  a  true,  just  and  final  account  of  all  things  relating 
to  their  said  business;  and  in  all  things  truly  adjust  the  same; 
and  that  all  and  every  stock  and  stocks,  as  well  as  the  gains  and 
increase  thereof,  which  shall  appear  to  be  remaining,  either  in 
money,  goods,  wares,  fixtures,  debts  or  otherwise  shall  be  divided 
between  them,  share  and  share  alike. 

No.  163. — Contract — Copartnership  Between  Merchants. 

Articles  of  agreement,  made  and  entered  into  this  sixth  day  of 
June,  igo6,  between  A.  B.,  of,  etc.,  of  the  one  part,  and  C.  D.,  of 
etc.,  of  the  other  part,  witnesseth  as  follows: 

The  said  A.  B.  and  C.  D.  have  joined,  and  by  these  presents  do 
join  themselves,  to  be  copartners  together,  in  the  business  of  gen- 
eral country  merchants,  and  all  things  thereto  belonging;  and, 
also,  in  buying,  selling,  and  retailing  all  sorts  of  wares,  goods, 
merchandise,  and  commodities,  and  all  kinds  of  produce  usually 
kept  and  sold  in  a  country  store,  and  in  such  commission  business 
as  may  appertain  to  the  same ;  which  said  copartnership  is  to  be 
conducted  under  the  name,  style,  and  firm  of  B.  &  D.,  at  the 
town  of  Dutch  Flat,  county  of  Placer,  state  of  California,  and 
shall  continue  from  the  first  day  of  Ju2y,  IQ06.  for  and  during, 
and  unto  the  end  and  term  of  two  years,  from  thence  next  ensu- 
ing, fully  to  be  complete  and  ended. 

And  to  that  end  and  purpose  the  said  parties  to  these  presents 
have,  the  day  of  the  date  hereof,  delivered  in  as  stock  the  sum 


Contracts.  139 

of  one  thousand  dollars,  share  and  share  alike,  to  be  used,  laid 
out,  and  employed  in  common  between  them  for  the  management 
of  the  said  business,  as  aforesaid,  to  their  mutual  benefit  and  ad- 
vantage ;  and  it  is  agreed  between  the  said  parties  to  these  pres- 
ents, that  the  capital  stock  of  the  firm  hereby  constituted  shall  be 
made  and  kept  up  to  the  sum  of  one  thousand  dollars,  share  and 
share  alike ;  that  the  same  may  at  any  time  be  reduced  or  ex- 
tended by  agreement  between  the  parties  hereto ;  and  that  the 
said  capital  stock,  together  with  all  credits,  goods,  wares,  or  com- 
modities bought  or  obtained  by  the  said  firm,  by  barter  or  other- 
wise, shall  be  kept,  used,  and  employed  in  and  about  the  business 
aforesaid ;  and,  for  that  purpose,  each  partner  shall  have  power 
to  use  the  name  of  the  firm,  and  to  bind  the  same,  in  making 
contracts  and  purchasing  goods  at  the  city  of  San  Francisco  or 
elsewhere,  and  in  otherwise  trading,  buying,  and  selling  on  ac- 
count of  the  said  firm,  and  for  the  benefit  and  behoof  thereof, 
and  not  otherwise ;  provided  however,  that  neither  party  shall 
contract  liabilities  in  the  name  and  on  the  credit  of  the  firm,  in 
purchasing  and  replenishing  their  stock  of  goods,  and  merchan- 
dise, to  exceed  the  sum  of  five  hundred  dollars,  without  the  con- 
sent of  the  other  partner ;  and,  also,  that  neither  of  the  said  co- 
partners shall  or  will,  during  the  said  term,  exercise  or  follow 
the  trade  or  business  of  merchandising,  as  aforesaid,  in  the  said 
county  of  Placer,  for  his  private  benefit  or  advantage ;  but  shall, 
at  all  times,  do  his  best  endeavor,  in  and  by  all  lawful  means,  to 
the  utmost  of  his  skill  and  power,  for  the  joint  interest,  pro^t, 
benefit,  and  advantage  of  the  firm  aforesaid ;  and  truly  employ, 
buy,  sell,  and  merchandise  with  the  stock  aforesaid,  and  the  in- 
crease and  profit  thereof,  in  the  business  of  merchants  aforesa'd; 
and,  also,  that  the  said  parties  shall  and  will,  at  all  times  during 
the  said  copartnership,  bear,  pay,  and  discharge  equally  between 
them  all  rents  and  other  expenses. 

No.  164. — Contract  to  Renew  Partnership,  to  be  Indorsed  on 
Original  Article. 

Whereas,  the  partnership  formed  by  and  mentioned  in  the 
within  article  of  agreement  has  this  day  expired  [or,  will  ex- 
pire on  the  first  day  of  July  next]  by  the  limitations  contained 
therein ;  it  is  therefore  hereby  agreed,  that  the  same  shall  be  con- 
tinued, on  the  same  terms,  and  with  all  the  provisions  and  re- 
strictions in  said  agreement  mentionefl.  for  the  further  term  of 
four  years  from  tliis  date  [or,  from  the  first  day  of  October, 
I  god.] 


14.0  New  Book  of  Forms. 


No.   165. — Contract  of  Dissolution  of  Partnership  to  be  In- 
dorsed on  the   Original  Articles, 

Py  mutual  consent  of  the  undersigned,  the  parties  to  the  with- 
in agreement,  the  partnership  thereby  formed  is  wholly  dissolved, 
except  so  far  as  it  may  be  necessary  to  continue  the  same  for  the 
final  liquidation  and  settlement  of  the  business  thereof;  and  said 
agreement  is  to  continue  in  force  for  such  purpose  until  such 
final  liquidation  and  settlement  be  made,  and  no  longer. 

No.  166. — Contract  of  Partnership. 

State  of  California, 

City  and  County  of  San  t'rancisco, — ss. 

We,  the  undersigned,  do  hereby  certify  that  we  are  partners 
transacting  business  in  this  state,  at  the  city  and  county  of  San 
Francisco,  under  the  firm  name  and  style  of  A.  L.  B.  &  Co.;  that 
the  names  in  full  of  all  the  members  of  such  partnership  are  H. 
H.  B.  and  A.  L.  B.,  and  that  the  places  of  our  respective  resi- 
dences are  set  opposite  our  respective  names  hereto  subscribed. 

No.    167. — Contract   to   Dissolve   Partnership. 

The  firm  heretofore  existing  under  the  name  and  style  of  S.  & 
A.  L.,  doing  business  in  the  city  of  Los  Angeles,  is  this  day  dis- 
solved by  mutual  consent,  S.  L.  having  purchased  the  entire  in- 
terest of  A.  L.  in  the  concern. 


No.  168. — Contract  to  Dissolve  Partnership  and  Notice  of  Dis- 
solution. 

The  copartnership  heretofore  existing  under  the  name  and 
style  of  L.  &  B.,  in  the  city  of  Sacramento,  is  dissolved  by  mutual 
consent.  All  persons  who  are  indebted  to  the  undersigned  are 
respectfully  requested  to  come  forward  and  make  payment  im- 
mediately. 

No.  169. — Contract  for  Sale  of  Real  Estate. 

I  hereby  agree  to  sell  to  C.  W.,  at  any  time  within  sixty  days 
from  the  date  hereof,  Block  No.  2^7  of  the  zvestcrn  addition,  in 
the  city  of  Downicville,  county  of  Sierra,  state  of  California,  for 
the  sum  of  seventy-five  thousand  dollars,  cash,  on  delivery  of 
deed,  and  which  deed  shall  contain  the  usual  covenants. 

Within  ten  days  from  date  I  agree  to  furnish  the  said  C.  W.  an 
abstract  of  title  to  said  land  certified  by  S.  B.  D.,  Esq.,  searcher 
of  records.  No.  fjj6  Courthouse  Block,  Downicville. 


Contracts.  141 

The  said  C.  IV.  has  deposited  with  me  one  thousand  dollars, 
which  I  will  credit  him  with  on  the  purchase  price,  should  he 
complete  the  purchase;  otherwise  I  will  retain  the  said  one  tliou- 
sjui!  dollars  as  liquidated  damages,  as  it  will  be  extremely  diffi- 
cult to  fix  my  actual  damage. 

I  accept  the  foregoing  agreement,  and  will  abide  in  all  things 
by  its  terms. 

NOTE. — In  all  states,  an  agreement  on  the  part  of  the  seller  of  real 
property  to  give  the  usual  covenants  binds  him  to  insert'  in  the  grant 
covenants  of  "seisin,"  "quiet  enjoyment,"  "further  assurance,"  "gen- 
eral warranty,"  and  "against  encumbrances":   Cal.  C.   C,  sec.   1733. 

The  covenants  mentioned  above  should  be  in  substance  as  follows: 
"The  party  of  the  first  part  covenants  with  the  party  of  the  second 
part  that  the  former  is  now  seised  in  fee  simple  of  the  property  granted; 
that  the  latter  shall  enjoy  the  same  without  any  lawful  disturbance; 
that  the  same  is  free  from  all  encumbrances;  that  the  party  of  the  first 
part,  and  all  persons  acquiring  any  interest  in  the  same  through  or  for 
him,  will,  on  demand,  execute  and  deliver  to  the  party  of  the  second 
part,  at  the  expense  of  the  latter,  any  further  assurance  of  the  same 
that  may  be  reasonably  required;  and  that  the  party  of  the  first  part 
will  warrant  to  the  party  of  the  second  part  all  the  said  property  against 
every  person  lawfully  claiming  the  same":  Id.,  sec.  1734. 


No.  170. — Contract  for  Sale  of  Real  Estate. 

This  agreement,  made  and  entered  into  the  ninth  day  of  Sep- 
tember, ipo6,  between  G.  A.,  of  San  Diego,  county  of  San  Diego, 
and  state  of  California,  the  party  of  the  first  part,  and  D.  J.,  of 
the  same  place,  the  party  of  the  second  part,  witnesseth : 

That  the  said  party  of  the  first  part,  in  consideration  of  the 
covenants  and  agreements  on  the  part  of  the  said  party  of  the 
second  part,  hereinafter  contained,  agrees  to  sell  and  convey  unto 
the  said  party  of  the  second  part,  and  said  second  party  agrees 
to  buy,  all  that  certain  lot  and  parcel  of  land,  situate  in  the  city 
of  San  Diego,  county  of  San  Diego,  and  state  of  California, 
bounded  and  described  as  follows,  to  wit:  [Description.]  For  the 
sum  of  fifty  thousand  (jO,ooo)  dollars,  gold  coin  of  the  United 
States :  and  the  said  party  of  the  second  part,  in  consideration  of 
the  premises,  agrees  to  pay  to  the  said  party  of  the  first  part,  the 
said  sum  of  fifty  thousand  (50,000)  dollars  in  United  States  gold 
coin,  as  follows,  to  wit:  Twenty-five  thousand  (25,000)  dollars. 
United  States  gold  coin,  on  the  execution  of  this  contract;  five 
thousand  dollars  on  the  fourth  day  of  January,  ipo6,  and  the 
balance  of  twenty  thousand  dollars  with  interest  thereon  at  the 
rate  of  nine  per  cent  per  annum  from  this  date,  on  the  tenth  day 
of  September,   IQO/. 

And  the  said  party  of  the  secand  part  agrees  to  pay  all  state, 
cit\.  and  county  taxes,  or  assessments  of  whatsoever  nature,  whicli 
are  or  may  become  due  on  the  premises  above  described. 


142  New  Book  of  Forms. 

In  the  event  of  a  failure  to  comply  with  the  terms  hereof  by 
the  said  party  of  the  second  part,  the  said  party  of  the  first  part 
shall  be  released  from  all  obligation  in  law  or  equity  to  convey 
said  property,  and  the  said  party  of  the  second  part  shall  forfeit 
all  right  thereto. 

And  the  said  party  of  the  first  part,  on  receiving  such  pay- 
ment, at  the  time  and  in  the  manner  above  mentioned,  agrees  to 
execute  and  deliver  to  the  said  party  of  the  second  part,  or  to 
his  assigns,  a  good  and  sufficient  deed  for  the  conveying  and 
assuring  to  said  party  of  the  second  part,  the  title  to  the  above- 
described  premises  free  and  clear  of  encumbrances. 

And  it  is  understood  that  the  stipulations  aforesaid  are  to 
apply  to  and  bind  the  heirs,  executors,  administrators,  and  as- 
signs of  the  respective  parties,  and  that  said  party  of  the  second 
part  is  to  have  immediate  possession  of  said  premises. 

Withdrawal  of  Deposit. — If  the  owner  is  not  legally  bound  to  convey 
under  his  contract,  a  proposed  purchaser  may  withdraw  the  full  amount 
of  his  deposit  before  a  lawful  contract  is  consummated:  Bogart  v. 
^Crosby,  91   Cal.   278,  27  Pac.  603. 

Partial  Payment  and  Delivery. — The  vendor  of  land  is  the  party  to 
be  charged,  and  his  signature  to  the  contract  to  sell,  and  if  the  contract 
is  delivered  to  the  purchaser,  who  makes  a  partial  payment,  binds  both 
parties:  Scott  v.  Glenn,  98  Cal.  168,  32  Pac.  983.  See,  also,  McDonald  v. 
Huff,  77  Cal.  279,  19  Pac.  499.     See  "Deeds." 


No.  171. — Agreement  with  Agent  or  Broker  to  Sell  Land. 

It  is  agreed  that  S.  B.,  shall,  as  my  agent,  contract  that  /  will 
sell  the  following  described  land  to  any  purchaser  found  by  him 
within  thirty  days  from  date  hereof,  viz.,  situated  in  the  city  and 
county  of  San  Francisco,  state  of  California,  and  known  as  iifty- 
vara  lot  No.  y  in  Block  No.  /dj,  of  the  Western  addition.  The 
price  to  be  not  less  than  ten  thousand  dollars  in  gold  coin  of  the 
United  States.  I  agree  to  furnish  to  the  purchaser  within  ten 
days  after  a  deposit  of  ^^c'o  hundred  and  fifty  dollars  is  made  with 
me  or  the  said  S.  B.,  an  abstract  of  title  to  said  land,  certified  to 
by  /.  and  B.  B.  C,  searchers  of  records  in  said  city  and  county. 
The  said  property  to  be  conveyed  free  of  all  encumbrances.  The 
said  property  shall  remain  in  the  hands  of  the  said  S.  B.  exclu- 
sively for  thirty  days  from  date ;  and  if  he  sells  the  same  within 
said  time,  /  will  pay  him  a  commission  of  two  per  cent  upon 
the  purchase  price.  All  advertising  expenses  attending  the  sale 
to  be  paid  by  the  said  S.  B. 

NOTE. — The  law  of  California  requires  an  agreement  authorizing  or 
employing  an  agent  or  broker  to  purchase  or  sell  real  estate  for  compen- 
sation or\  commission,  to  be  in  writing,  subscribed  by  the  party  to  be 
charged  or  his   agent. 


Contracts.  143 

No.  172.— Agreement  for  the  Sale  of  Animals, 

This  agreement,  etc.,  witnesseth: 

That,  in  consideration  of  the  agreement  of  the  said  R.  R. 
hereinafter  contained,  the  said  /.  D.  agrees  to  sell  and  deliver, 
on  the  Urst  day  of  June  next,  to  the  said  R.  R.,  at  his  store  in 
Sonora,  ofie  yoke  of  four  year  old  oxen. 

And  the  said  R.  R.,  in  consideration  thereof,  agrees  to  pay  to 
the  said  /.  D.  sixty  dollars,  gold  coin  of  tlie  United  States, 'im- 
mediately upon  delivery  thereof. 

No.   173. — Contract   (Broker's)    of  Sale. 

Date. 

Sold  this  day  for  account  of  A.  B.  C.  to  B.  F.  G.  the  following 
described  premises  situate  in  the  city  and  county  of  San  Fran- 
cisco, state  of  California,  to  mit:  [Descriptioni  '^or  the  sum  of 
$10,000  in  United  States  gold  coin,  on  the  following  terms,  to 
wit :  One  thousand  dollars  cash  deposit  upon  the  signing  of  this 
contract,  and  $p,ooo  cash  upon  delivery  of  deed  to  purchaser. 
The  taxes  for  the  year  igo6  to  he  paid  by  the  seller. 

Received  from  E.  F.  C,  $1,000  as  a  deposit  on  above  sale,  to 
be  refunded  in  case  a  good  title  cannot  be  given  by  the  seller, 
or  in  case  this  contract  is  not  approved  by  the  seller,  twenty  days 
to  be  allowed  for  search  of  title. 

In  case  the  title  proves  defective,  the  necessary  expenses  of 
search  and  of  examination  of  title  to  be  paid  by  the  seller,  abstract 
to  he  furnished  dozvn  to  date  hereof,  by  seller.  [The  amount  to 
be  expended  is  frequently  agreed  upon  by  all  parties  to  the  con- 
tract.] 

No.    174. — Landlord's    Contract. 

This  is  to  certify,  that  /  have  let  and  rented  unto  /.  B.,  the 
house  and  lot  above  mentioned,  designated  and  knozvn  h\  the 
number  714  Washington  street,  San  Francisco,  and  the  sole  and 
uninterrupted  use  and  occupation  thereof,  for  the  term  of  ten 
(10)  months  from  the  tzventy-first  day  of  December.  igo6,  at  the 
monthly  rent  of  Hfty  (50)  dollars,  payable  in  gold  coin' oi  the 
United  States  of  America,  monthly  in  advance,  on  the  tzvcnty- 
Urst  day  of  each  and  every  month.  The  said  premises  are  not 
to  be  used  or  occupied  for  any  business  deemed  extrahazardous 
on  account  of  fire,  nor  shall  the  same,  or  anv  part  thereof  be 
let,  or  underlet,  without  the  written  consent  of  the  landlord,  un- 
der the  penalty  of  forfeiture  and  damages. 

NOTE. — In  California  a  tenant  may  expend  one  month 's  rent  for 
rerairs.  if  ho  notifies  the  landlord  of  dilapidations  which  he  should  re- 
pair, and  which  he  neglects  to  do:   C.  C,  1942. 


144  New  Book  of  Forms. 

No.  175. — Tenant's  Contract. 

This  is  to  certify,  that  /  have  hired  and  taken  from  R.  D.,  all 
that  certain  house  and  premises  situate  in  the  city  and  county  of 
San  Francisco,  state  of  California,  and  designated  and  knozvn  by 
the  number  714  Washington  street,  said  hotise  containing  eight 
rooms,  besides  basement,  for  the  term  of  ten  months  from  the 
twenty-Hrst  day  of  December,  1904,  at  the  monthly  rent  of  fifty 
(§0)  dollars,  payable  in  gold  coin  of  the  United  States  of  Amer- 
ica, monthly  in  advance,  on  the  twenty-Hrst  day  of  each  and 
every  month. 

And  I  do  hereby  promise  to  make  punctual  payment  of  the 
rent  in  manner  aforesaid,  and  to  quit  and  surrender  the  said 
premises  at  the  expiration  of  the  said  term  to  said  lessor,  his 
agent,  attorney,  or  assigns,  in  as  good  state  and  condition  as  rea- 
sonable use  and  wear  thereof  will  permit  (damages  by  the  ele- 
ments alone  excepted),  and  not  to  let  or  underlet  the  whole  or 
any  part  of  the  said  premises  without  the  written  consent  of  the 
landlord,  under  the  penalty  of  forfeiture  and  damages;  and  also 
not  to  occupy  the  said  premises  for  any  business  deemed  extra- 
hazardous on  account  of  fire,  without  the  like  consent,  under  the 
like  penalty;  nor  will  /  expend  any  money  due  for  rent  for  re- 
pairs, without  the  written  consent  of  the  landlord. 

No.  176. — Contract  by  Surety — Payment  of  Rent. 

In  consideration  of  the  letting  of  the  premises  above  described, 
and  for  the  sum  of  one  dollar,  I  do  hereby  become  surety  for 
the  punctual  payment  of  the  rent,  and  performance  of  the  cove- 
nants, in  the  above-written  agreement  mentioned,  to  be  paid  and 
performed  by  C.  D.,  as  therein  specified ;  and  if  any  default  shall 
at  any  time  be  made  therein,  I  do  hereby  promise  and  a^ee  to 
pay  unto  the  landlord  in  said  agreement  named,  the  said  rent, 
or  any  arrears  thereof  that  may  be  due,  and  fully  satisfy  the 
conditions  of  the  said  agreement,  and  all  damages  that  may  ac- 
crue by  reason  of  the  nonfulfillment  thereof,  without  requiring 
notice  or  proof  of  demand  being  made. 

No.  177. — Contract — Debtor  with  Creditors. 

Know  all  Men  by  these  Presents:  That  A.  B.,  of  Jackson, 
county  of  Amador,  state  of  California,  is  indebted  unto  us,  his 
said  several  creditors,  in  divers  sums  of  money;  but  by  reason 
of  sundrv  losses,  happened  unto  the  said  A.  B.,  he  is  become  un- 
able to  satisfy  our  demands,  and  therefore  we,  the  said  creditors, 
have  resolved  and  agreed  to  unrlergo  a  certain  loss,  and  to  accept 
of  twenty  cents,  gold  coin  of  the  United  States,  for  every  dollar 


Contracts.  145 

owing  by  the  said  A.  B.  to  us,  the  several  and  respective  cred- 
itors aforesaid,  to  be  paid,  in  such  g-old  coin,  in  full  satisfaction 
and  discharge  of  our  several  and  respective  debts: 

Now  we,  the  said  creditors  of  the  said  A.  B.,  do,  for  ourselves, 
severally  and  respectively,  and  for  our  several  and  respective 
heirs,  executors,  and  administrators,  promise  and  agree,  to  and 
with  the  said  A.  B.,  by  these  presents,  that  we,  the  said  several 
and  respective  creditors,  shall  and  will  accept  of  and  from  the 
said  A.  B.,  for  each  and  every  dollar  that  the  said  A.  B.  does 
owe  to  us,  the  said  several  and  respective  creditors,  the  sum  of 
hvcnty  cents,  payable  in  gold  coin  of  the  United  States,  in  full 
discharge  and  satisfaction  of  the  several  debts  and  sums  of  money 
that  the  said  A.  B.  does  owe  and  stand  indebted  unto  us;  to  be 
paid  unto  us,  the  said  several  and  respective  creditors,  within 
the  time  or  space  of  six  months  next  after  the  date  of  these  pres- 
ents; and  we,  the  said  several  and  respective  creditors,  do  sev- 
erally and  respectively  covenant,  promise,  and  agree,  to  and 
with  the  said  A.  B.,  that  the  said  A.  B.  shall  and  may,  from  time 
to  time,  and  at  all  times,  within  the  said  time  or  space  of  tivelve 
months  next  ensuing  the  date  hereof,  assign,  sell,  or  otherwise 
dispose  of,  all  his  goods  and  chattels,  wares  and  merchandise,  at 
his  own  free  will  and  pleasure,  for  and  toward  the  pa>Tnent  and 
satisfaction  of  the  said  twenty  cents  for  every  dollar  the  said 
A.  B.  does  owe  and  is  indebted  unto  us,  as  aforesaid;  and  that 
neither  we,  the  said  several  and  respective  creditors,  nor  any  or 
either  of  us,  shall  or  will,  at  any  time  or  times  hereafter,  sue, 
arrest,  molest,  or  trouble  the  said  A.  B.,  or  his  goods  and  chat- 
tels, for  any  debt  or  other  thing,  now  due  or  owing  to  us,  or 
any  of  us,  his  respective  creditors ;  so  as  the  said  A.  B.  well  and 
truly  pay,  or  cause  to  be  paid,  in  such  gold  coin,  the  said  sum 
of  tzventy  cents  for  every  dollar  he  does  owe  and  stand  indebted 
to  us,  respectively,  within  the  said  time  or  space  of  six  months 
next  ensuing  the  date  hereof;  and  all  and  every  of  the  o-rants, 
covenants,  agreements,  and  conditions,  herein  contained,  shall  ex- 
tend to  and  bind  our  several  executors,  administrators,  and  as- 
signs. 

NOTE. — The  account  of  each   creditor's  claim   should   be   ^ven   in   a 
schedule  annexed,  set  opposite   the  respective   name   of   the  creditor. 

No.  178. — Option  to  Purchase  Land. 

Received  of  A.  B.  C.  the  sum  of  five  hundred  dollars,  as  part 
payment  for  the  following  described  property  situated  in  the 
county  of  Alameda,  state  of  Cali forma,  and  described  as  follows, 
to  wit:  [Description.]  The  entire  price  to  be  paid  for  said  above-' 
described  property  is  $10,000,  and  to  be  paid  as  follows:  Xine 
thousand  five  hundred  dollars  to  he  paid  zvithin  thirty  da\s  after 
S.  B.  D..  attorney  at  law  of  the  city  of  Oakland,  countv'of  Alit- 
New  Forms — 10 


146  New  Book  oif  Forms. 

tneda,  notices  said  A.  B.  C.  that  the  title  to  said  land  is  perfect 
in  B.  F.  G.  Said  attorney  to  make  his  report  on  said  title  within 
ten  days  from  the  date  he  receipts  for  the  abstract  of  said  title. 

A  deed  to  be  executed  and  delivered  by  the  said  B.  F.  G.  to 
said  A.  B.  €.,  or  his  assigns,  on  or  before  the  tenth  day  of  May, 
A.  D.  ipo6. 

Provided,  however,  that  the  payment  of  $9,500  is  paid  at  said 
date,  but  if  not  paid  on  or  before  the  said  tenth  day  of  May, 
A.  D.  ipod,  then  this  contract  to  be  of  no  effect,  and  in  that 
event  the  said  $300  to  be  retained  by  said  B.  F.  G.  as  liquidated 
damages. 

Time  is  of  the  essence  of  this  contract. 

No.  179. — Contract  to  Sell  or  Assign  the  Copyright  in  a  Book. 

This  agreement,  made  the  fifteenth  day  of,  etc.,  between  A.  B., 
of,  etc.,  and  C.  D.,  of,  etc.,  bookseller  and  publisher,  witnesseth : 

That  the  said  A.  B.  agrees  to  sell,  and  does  hereby  sell,  to  the 
said  C.  D.,  all  his  copyright,  title,  interest,'  and  property,  in  and 
to  a  certain  book,  written  and  compiled  by  the  said  A.  B.,  entitled 
[title  of  the  book  at  length],  and  entered,  and  copyright  secured 
by  the  said  A.  B.,  in  the  office  of  the  Librarian  of  Congress,  at 
Washington,  District  of  Columbia,  on  the  sixth  day  of  July,  in 
the  year  ipod,  and  the  said  A.  B.,  also  agrees  to  prepare  and 
furnish  a  fair  copy  of  the  said  work  to  the  printer  to  be  em- 
ployed by  the  said  C.  D.,  and  to  superintend  the  printing, 
and  exarnine  and  correct  the  proofs  thereof  as  fast  as  furnished, 
and  to  make  and  complete  a  full  and  correct  index  therefor  in 
due  time. 

In  consideration  whereof,  the  said  C.  D.  agrees  to  pay  unto 
the  said  A.  B.  the  sum  of  one  thousand  dollars,  gold  coin  of  the 
United  States,  on  the  Urst  day  of  August,  igo6. 

NOTE. — Assignment  of  copyright  must  be  in  writing:  Act  of  Congress 
July  8,  1870. 

No.   180. — Contract — Cultivate  Land  on  Shares. 

This  agreement,  etc.,  witnesseth: 

That  /.  D.  agress  with  R.  R.  that  he  will  properly  plow, 
harrow,  till,  fit  and  prepare  for  sowing,  according  to  the  rules 
of  good  husbandry,  all  that  certain  field  of  ground  belonging  to 
the  said  R.  R.,  which  field  hes,  etc.;  [Description  of  the  field.] 
Containing  about  fifty  acres,  and  to  sow  the  same  with  good, 
clean  zvheat,  finding  one-half  of  the  seed  wheat  necessary  there- 
for, on  or  before  the  tenth  day  of  January,  1905;  and  that  he 
will  at  the  proper  time  cut,  harv^est,  and  thrash  the  said  zvheat, 
and  properly  winnow  and  clean  the  same,  and  deliver  the  one- 
half  part  of  the  said  wheat  to  the  said  R.  R.,  at  his  barn,  on  his 
premises,  in  the  said  city  of  Oakland,  near  his  dwelling-house, 


Contracts.  147 

within  ten  days  after  the  same  shall  have  been  cleaned ;  and  will 
carefully  stack  the  one-half  part  of  the  straw  on  the  premises  of 
the  said  R.  R.,  near  to  his  barn  aforesaid. 

And  the  said  R.  R.,  in  consideration  of  the  foregoing  agree- 
ment, promises  and  agrees,  to  and  with  the  said  /.  D.,  that  he 
may  enter  in  and  upon  the  said  field  for  the  purpose  of  tilling 
and  sowing  the  same,  and  of  harvesting  the  crop ;  and  free  in- 
gress and  egress  have  and  enjoy  for  the  purposes  aforesaid ;  and 
that  he  will  furnish  to  the  said  /.  D.  one-half  part  of  the  seed 
wheat  necessary  to  sow  the  same,  on  or  before  the  Urst  day  of 
January  next,  and  permit  the  said  /.  D.  to  thrash  and  clean  the 
wheat  upon  the  premises  of  the  said  R.  R. 


No.  181. — Contract  not  to  Sue. 

Know  aix  IMen  by  thkse  Presents:  That  whereas  7.  D.,  of 
the  city  of  Oakland,  in  the  county  of  Alameda,  and  state  of  Cali- 
fornia, is  justly  indebted  to  us,  R.  R.,  J.  S.,  and  P.  B.,  in  divers 
sums  of  money,  which  the  said  /.  D.  is  unable  to  pay : 

Now,  we  and  each  of  us,  for  ourselves,  our  and  each  of  our 
heirs,  executors,  administrators,  and  assigns,  for  and  in  consid- 
eration of  the  agreement  and  covenant  of  the  said  /.  D.,  here- 
inafter contained,  do  covenant  and  agree  with  the  said  /.  D.,  that 
we  will  not,  nor  will  either  or  any  of  us,  at  any  time  during  two 
years  from  the  date  hereof,  sue,  prosecute,  arrest,  molest,  or 
trouble  the  said  J.  D.,  in  respect  to  or  on  account  of  any  debts 
now  by  him  due  or  owing  to  us,  or  any  or  either  of  us. 

And  the  said  /.  D.,  in  consideration  of  the  foregoing  covenant 
and  agreement,  for  himself,  his  heirs,  executors,  and  administra- 
tors, covenants  and  agrees  with  the  creditors  aforesaid,  that  he 
will  faithfully  apply  all  moneys,  property,  and  effects  that  he  may 
earn  or  procure  during  the  said  term  of  tivo  years  to  the  payment, 
in  gold  coin  of  the  United  States,  of  his  debts  owing  to  the  cred- 
itors aforesaid,  in  proportion  to  the  amount  due  and  owing  to 
each. 


CORONER. 


No.  182. — Coroner's  Certificate  of  Death. 

Office  of  the  Coroner  of  the 
City  and  County  of  San  Francisco,  State  of  California. 
I,  J.  G.,  coroner  of  the  city  and  county  of  San  Francisco,  state 
of  California,  do  hereby  certify  that  I  held  an  inquisition  upon 
the  body  of  C.  D.,  a  native  of  Ireland,  aged  forty-four  years,  at 


148  New  Book  ov  Forms. 

N'o.  636  Washington  street,  on  the  tenth  day  of  Julv,  IQ06.    Ver- 
dict of  the  jury:  Death  from  mide  stroke. 

And  I  further  certify,  that  /  caused  to  be  interred  his  body  at 
''Home  of  Peace"  Cemetery,  in  tlie  county  of  San  Mateo,  on  the 
twelfth  day  of  July,  ipo6. 

No.  183. — Coroner's  Jury — Inquisition  by. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Before  /.  G.,  Coroner. 

In  the  Matter  of  the  Inquisition  upon  the  Body 
of  A.  B.,  Deceased. 

We,  the  undersigned,  the  jurors  summoned  to  appear  before 
/.  G.,  the  coroner  of  the  city  and  county  of  San  Francisco,  at 
[state  place],  on  the  first  day  of  May,  ipo6,  to  inquire  into  the 
cause  of  the  death  of  A.  B.  [or,  of  a  person  found  drowned  in  the 
bay  of  San  Francisco ;  or,  found  lying  dead  in  the  street ;  or,  as 
the  case  may  he,  whose  name  is  unknown],  having  been  duly 
sworn  according  to  law,  and  having  made  such  inquisition,  after 
inspecting  the  body,  and  hearing  the  testimony  adduced,  upon  our 
oaths,  each  and  all  do  say,  that  we  find  the  deceased  was  named 
A.  B.,  was  a  native  of  Ireland,  aged  about  forty  years;  that  he 
came  to  his  death  on  the  first  day  of  May,  IQ06,  in  tliis  county, 
by  drowning,  having  been  found  in  the  Bay  of  San  Francisco,  at 
or  near  the  Washington  street  wharf,  and  whether  the  same  was 
accidental  or  intentional  we  have  no  means  of  knowing  [or,  by 
jioison  administered  willfully  by  his  own  hand ;  or,  by  the  hand  of, 
or  by  the  means  or  instigation,  of  some  other  person,  to  the  jury 
unknown ;  or,  and  we  further  find,  that  we  believe  C.  D.  to  be  the 
person  by  whose  act  the  death  of  the  said  A.  B.  is  occasioned — 
stating  the  facts,  as  the  case  may  be.] 

All  of  which  we  duly  certify  by  this  inquisition,  in  writing,  by 
us  signed,  this  second  day  of  May,  igo6. 

NOTE. — The  verdict  of  coroner's  jury  must  be  signed  by  each  and 
every  juror:  See  Pen.  Code,  sec.  1.514.  Duties  of  coroners  prescribed  by 
sections  1510  to  1519,  Penal  Code,  and  sections  4285  to  4290,  Political 
Code. 

No.   184. — Coroner's  Subpoena, 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

The  People  oe  the  State  of  Calif omia  Send  Greeting: 

To  R.  S.  and  /.  R. :  We  command  you,  that,  all  and  singular 
business  and  excuses  being  laid  aside,  you  be  and  appear  before 


Coroner.  149 

the  undersig-ned,  coroner  of  the  city  and  county  of  San  Francisco, 
state  of  California,  at  No.  86^  Market  street,  on  the  thirty-first 
day  of  December,  igo§,  at  ten  o'clock  A.  M.,  then  and  there  to 
testify  and  give  evidence  in  a  certain  inquisition  now  pendinor  be- 
fore said  coroner;  and  herein  fail  not,  or  answer  the  contrary  at 
your  peril. 

Given  under  my  hand,  etc. 

No.  185. — Coroner's  Summons — Juryman. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

The  People  of  the  State  oe  California  Send  Greeting: 

To  /.  S.:  We  command  you,  that,  all  and  singular  business  and 
excuses  being  laid  aside,  you  be  and  appear  before  the  under- 
signed, coroner  of  the  city  and  county  of  San  Francisco,  state  of 
California,  at  No.  86j  Market  street,  on  the  thirty-first  day  of 
December,  IQ06,  at  ten  o'clock  A.  M.,  then  and  there  to  serve  as 
a  juror  in  a  certain  inquisition  now  pending  before  said  coroner; 
and  herein  fail  not,  or  answer  the  contrary  at  your  peril. 

No.  186. — Coroner's  Warrant, 

State  of  Califomi-a, 

City  and  County  of  San  Francisco, — ss. 

The  People  oe  the  State  of  California  to  any  Sheriff.  Con- 
stable, Marshal,  or  Policeman  in  this  State : 
An  inquisition  having  been  this  day  found  by  a  coroner's  jury, 
before  me,  stating  that  A.  G.  has  come  to  his  death  by  the  act  of 
/.  D.,  by  criminal  means:  You  are  therefore  commanded  forth- 
with to  arrest  the  above-named  /.  D.,  and  take  him  before  the 
nearest  or  most  accessible  magistrate  in  this  county. 

No.  187. — Coroner's  Subpoena. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

The  People  of  the  State  of  California  Send  Greeting: 

To  R.  S.  and  J.  R.:  We  command  you,  that,  all  and  singular 
business  and  excuses  being  laid  aside,  you  be  and  appear  before 
the  undersigned,  coroner  of  the  city  and  county  of  San  Francisco, 
state  of  California,  at  Hall  of  Justice,  on  the  thirty-first  day  of 
December,  ipoj,  at  ten  o'clock  A.  M.,  then  and  there  to  testify 
and  give  evidence  in  a  certain  inquisition  now  pending  before 
said  coroner;  and  herein  fail  not,  or  answer  the  contrary  at  your 
peril. 


i^o  New  Book  of  Forms. 

No.  1 88. — Oath  to  Coroner's  Jury. 

You  and  each  of  you  do  solemnly  swear  that  you  will  truly  in- 
quire into  the  cause  of  the  death  of  the  person  whose  body  is  now 
lying  here  [or,  "whose  body  you  have  just  viewed"],  who  he  was, 
when,  where  and  by  what  means  he  came  to  his  death,  and  into 
the  circumstances  attending  his  death,  and  render  a  true  verdict 
thereon,  according  to  the  evidence  afforded  you,  or  arising  from 
the  inspection  of  the  body.     So  help  you  God. 

No.  189. — Oath  of  Witness  Before  Coroner's  Inquest. 

You  do  solemnly  swear  [or,  "affirm"]  that  the  evidence  you 
shall  give  upon  the  inquest  now  pending,  concerning  the  death  of 
A.  B.  [or,  "the  person  now  lying  here,"  or,  "the  person  upon 
whom  inquisition  is  being  made"],  shall  be  the  truth,  the  whole 
truth,  and  nothing  but  the  truth.     So  help  you  God. 

No.  190. — Coroner's  Certificate  of  Death. 

Office  of  the  Coroner  of  the  County  of  Napa. 

I,  C.  D.,  coroner,  do  hereby  certify,  that  I  held  an  inquisition 
upon  the  body  of  A.  B.,  a  native  of  C,  aged  2^  years,  at  No.  7112 
N.  street  on  the  third  day  of  January,  ipoj.  Verdict  of  the 
jury — death  from  intemperance. 

And  I  further  certify,  that  I  interred  the  body  at  the  C.  P.  cem- 
etery, in  this  county,  on  the  4th  day  of  January,  ipoj. 

No.  191. — Demand  for  Body  by  Coroner, 

To  G.  &  B.,  Undertakers. 

Gentlemen:  I  hereby,  as  coroner  of  the  county  of  Napa,  state 
of  California,  demand  of  you  the  possession  of  the  body  of  H.  C, 
now  in  your  possession,  for  the  purpose  of  holding  an  inquest  to 
ascertain  the  cause  of  his  death.  I  demand  an  immediate  deliv- 
ery of  said  body  to  G.  L.,  who  will  serve  this  demand  upon  you. 

No.  192. — Coroner's  Certificate — Value  of  Services. 

I  hereby  certify  that  on  the  fifth  day  of  July,  I,  as  coroner  of 
the  City  and  County  of  San  Francisco,  state  of  California,  held 
an  inquest  upon  the  body  of  F.  C.  That  I  caused  H.  S.  (a  physi- 
cian by  profession  residing  in  said  city  and  county,  at  No.  32^3 
Maple  street;,  to  be  subpoenaed  as  a  witness  to  inspect  the  body 
of  said  deceased,  and  to  give  his  professional  opinion  as  to  the 
cause  of  the  death  of  said  F.  C.  That  he  api^eared  at  said  inquest 
and  inspected  said  body  and  gave  his  professional  opinion  as  to 
the  cause  of  the  death  of  said  F.  C.  That  he  was  detained  by  me 
at  said  inquest  during  six  hours,  and  I  consider  his  services  were 
of  the  value  of  $30. 


Coroner — Corporations.  151 


No.  193. — Coroner's  Subpoena. 

[For  experts,  same  as  No.  i8y,  except  say:]  "Then  and  there 
to  inspect  the  body  of  a  person  [state  name  if  knozvn]  upon  whose 
body  an  inquest  is  beinq-  held,  and  to  give  a  professional  opinion 
as  to  the  cause  of  the  death  of  said  person." 

[Or:]  "Then  and  there  to  make  an  analysis  of  the  contents  of 
the  stomach  of  the  body  of  said  deceased,  and  give  a  professional 
opinion  as  to  the  cause  of  the  death  of  said  person." 

[Or:]  To  make  an  analysis  of  tlve  tissues  of  the  body  of  said 
deceased. 

No.  194. — Coroner's  Statement  to  Supervisors. 

To  the  Honorable  the  Board  of  Supervisors  of  the  County  of 
Merced : 

I  hereby  certify  that  on  the  third  day  of  June,  iQOj,  I  held  an 
inquest  upon  the  body  of  S.  J.,  who  zvas  found  dead  on  a  public 
road,  in  said  county,  on  the  second  day  of  June,  i()0§.  I  ex- 
amined the  body  of  said  deceased  and  I  found  upon  it  a  silver 
Waltham  zvatch,  No.  igj,^2j;  two  gold  cuff  buttons;  a  Waterman 
fountain  pen;  a  pocket-knife  and  bunch  of  keys,  and  $14.35  '" 
silver  coin.  That  on  the  fourth  day  of  June,  1905,  I  delivered 
all  of  said  property  to  the  county  treasurer  of  said  county. 

State  of  California, 
County  of  Merced, — ss. 

A.  B.  C,  coroner  of  the  said  county  of  Merced,  being  by  me 
duly  sworn,  says  that  the   foregoing  statement  is  true. 
[See  Verification.] 


CORPORATIONS. 


No.   195. — Certificate  of  Incorporation. 
ARTICLES  OF  INCORPORATION  OF  THE  B.M.B.M.  CO. 

Know  all  Men  by  these  Presents:  That  we,  the  under- 
signed, have  this  day  voluntarily  associated  ourselves  together  for 
the  purpose  of  forming  a  corporation  under  the  laws  of  tlie  state 
of  California. 

And  we  hereby  certify: 


152  New  Book  of  Forms. 

First.  That  the  name  of  said  corporation  is  The  B.  M.  E.  M. 
Co. 

Second.  That  the  purposes  for  which  it  is  formed  are  to  carry 
on  the  business  of  mining  for  gold  in  the  county  of  Sierra,  state  of 
California. 

Third.  That  the  place  where  its  principal  business  is  to  be 
transacted  shall  be  the  town  of  Downieville,  county  of  Sierra. 

Fourth.  That  the  term  for  which  it  is  to  exist  is  fifty  years 
from  and  after  the  date  of  its  incorporation. 

Fifth.  That  the  number  of  its  directors  shall  be  Hve,  and  that 
the  names  and  residences  of  those  who  are  appointed  for  the  first 
year  are: 

NAMES.  ,  RESIDENCES. 

S.  B.  D.  [and  four  others].  Dozvnieville,  Sierra  County. 

Sixth.  That  the  amount  of  the  capital  stock  of  this  corporation 
shall  be  five  million  (^,000,000)  dollars,  divided  into  fifty  thou- 
sand (f,o,ooo)  shares,  of  the  par  value  of  one  hundred  (100)  dol- 
lars each. 

Seventh.  That  the  amount  of  said  capital  stock  which  has  been 
actually  subscribed  is  five  million  (5,000,000)  dollars,  and  the  fol- 
lowing are  the  names  of  the  persons  by  whom  the  same  has  been 
subscribed,  to  wit: 

NAMES    OE    SUBSCRIBERS.  NO.    OE    SHARES,  AMOUNT. 

S.  B.  D.  [and  four  others].  10,000.  $1,000,000 

In  witness  whereof,  we  have  hereunto  set  our  hands  and  seals, 
this  twentieth  day  of  May,  one  thousand  nine  hundred  and  five. 

S.  B.  D.   [and  four  others]. 
State  of  California, 
County  of  Sierra, — ss. 

On  this  twentieth  day  of  May,  in  the  year  one  thousand  nine 
hundred  and  five,  before  me,  H.  B.,  a  notary  public  in  and  for  said 
county,  residing  therein,  duly  commissioned  and  sworn,  person- 
ally appeared  S.  B.  D.  [and  four  others],  personally  known  to  me 
to  be  the  persons  whose  names  are  subscribed  to  the  within  in- 
strument, and  they  each  duly  acknowledged  to  me  that  they  ex- 
ecuted the  same. 

NOTE. — In  California  corporations  for  profit  may  have  not  less  than 
five  nor  more  than  eleven  directors.  A  majority  of  them  must  be  citi- 
zens of  the  state.  There  appears  to  be  no  prohibition  respecting  age  or 
B€x.  Corporations  not  organized  for  profit  may  have  not  less  than  five 
nor  more  than  fifty  directors  or  trustees:   C.  C.,  sees.  290-305  et  seq. 


Corporation  s.  153 

No.  196. — Certificate  of  Reincorporation. 

tBRTIPICATE  OF  THE  ELECTION  OF  A  BANK  TO 
CONTINUE  ITS  EXISTENCE  UNDER  THE  CIVIL 
CODE  OF  THE  STATE  OF  CALIFORNIA. 

We,  the  undersigned  directors  (trustees)  of  "The  B.  of  C," 
and  the  secretary  of  the  same,  do  hereby  certify: 

That  "The  B.  of  C."  was  a  corporation  existing  on  the  first  day 
of  January,  one  thousand  nine  hundred  and  four,  formed  under 
the  laws  of  this  state,  and  is  still  existing. 

That  a  meeting  of  the  directors  (trustees)  of  said  ocrporation, 
duly  called,  was  held  on  the  twenty-fourth  day  of  November,  one 
thousand  nine  hundred  and  six,  at  twelve  o'clock  noon,  at  the 
banking  house  of  said  bank,  in  the  city  and  county  bf  San  Fran- 
cisco, state  of  California. 

That,  at  said  time  and  place,  all  the  directors  (trustees)  of  said 
corporation  (being  the  undersigned,  except  said  secretary)  assem- 
bled as  a  board  of  directors   (trustees)  of  said  corporation. 

That,  then  and  there,  the  said  directors  (trustees),  by  a  unani- 
mous vote,  made  an  election  and  resolved  unanimously  to  con- 
tinue the  existence  of  said  corporation,  "The  B.  of  C."  under  the 
provisions  of  the  Civil  Code  of  the  state  of  California  applicable 
thereto,  and  the  statutes  amendatory  thereof  and  supplementary 
thereto. 

And  we  do  further  certify,  that  said  election  and  action  of  said 
directors  (trustees)  were  made  and  had  upon  the  written  consent 
(presented  to  us  at  the  time  and  place  aforesaid)  of  the  stockhold- 
ers of  said  corporation,  representing  a  majority  of  the  capital 
stock  thereof. 

In  witness  whereof,  etc. 

NOTE.— California,  C.  O,  sec.  287. 

No.  197. — Articles  of  Incorporation  of  Railroad  Company.. 

Know  aix  Men  by  these  Presents:  That  we,  the  under- 
signed, have  this  day  associated  ourselves  together  for  the  pur- 
pose of  incorporating  under  the  laws  of  the  state  of  California, 
a  corporation,  to  be  known  by  the  corporate  name  of  S.  R.  B.  of 
the  N.  P.  C.  R.  Co. 

And  we  hereby  certify,  that  the  objects  for  which  this  corpora- 
tion is  formed,  are  to  construct,  conduct,  maintain,  and  ozvn  a  nar- 
row-gauge railroad  (and  telegraph  line  in  connection  therewith), 
from  the  city  of  Santa  Rosa,  in  the  county  of  Sonoma,  and  state  of 
California,  to  a  point  at  or  near  a  place  called  Freestone,  in  said 
county  and  state,  and  distant  from  the  said  city  of  Santa  Rosa 
about  twelve  mUes,  which  is  the  estimated  length  of  said  railroad 


154  New  Book  of  Forms. 

and  telegraph  line :  and  at  or  near  said  place  called  Freestone,  to 
connect  with  the  N.  P.  C.  R.  R. 

That  its  principal  place  of  business  shall  be  the  city  of  San 
Francisco,  in  said  state  of  California. 

That  the  time  of  its  existence  shall  be  tifty  years  from  and  after 
the  date  of  its  incorporation. 

That  the  number  of  directors  shall  be  £i>e,  and  that  the  names 
of  those  who  shall  be  directors,  and  are  appointed  to  manage  its 
affairs  for  the  first  year,  are: 

NAME.  RESIDENCE. 

/.  F.  K.   [and  the  others].  San  Francisco,  Col. 

That  the  capital  stock  of  this  corporation  shall  be  two  hundred 
and  fifty  thousand  dollars,  divided  into  twenty-five  hundred 
shares,  of  the  par  value  of  one  hundred  dollars  each,  all  in  gold 
coin  of  the  United  States. 

That  the  amount  of  capital  stock  actually  subscribed  is  the  sum 
of  thirteen  thousand  and  five  hundred  dollars,  and  that  the  same 
has  been  subscribed  by  the  following  persons: 

NAMES.  NO.    OF   SHARES.  AMOUNT. 

/.  F.  K.  [and  the  others].  25  $2^00 

And  that  at  least  ten  per  cent  thereof  has  been  paid  in  to  the 
treasurer  of  this  intended  corporation,  duly  elected  by  the  said 
subscribers. 


No,   198. — Certificate — Incorporation  of  Church. 

Know  all  men  :  That  we,  the  undersigned,  have  this  day  vol- 
untarily associated  ourselves  together  for  the  purpose  of  incorpo- 
rating under  the  laws  of  the  state  of  California,  and  in  pursuance 
of  the  purposes  for  which  we  have  been  elected,  as  hereinafter  set 
forth,  a  religious  corporation  to  be  known  as  St.  S.  E.  M. 

And  we  certify,  that  the  objects  for  which  this  corporation  is 
formed  are :  To  establish  a  mission  church  in  the  city  and  county 
of  San  Francisco,  and  in  connection  therewith  suitable  and  cus- 
tomary organizations,  for  the  purpose  of  public  worship  and  relig- 
ious training,  according  to  the  rules  and  discipline  of  the  Episco- 
pal Church  of  the  United  States  of  America,  under  the  supervision 
of  the  Bishop  of  the  Diocese  of  California,  to  take  charge  of  the 
church  building,  estate,  and  property,  and  the  affairs  of  the  tem- 
poralities thereof ; 

That  the  principal  place  of  business  of  this  corporation  shall  be 
in  the  city  and  county  of  San  Francisco,  state  of  California; 

That  the  term  of  the  incorporation  shall  be  fifty  years; 


Corporations. 


155 


That  the  inimbcr  of  trustees  who  shall  have  the  management  of 
its  affairs  as  aforesaid  shall  be,  and  the  names  of  the  trustees 
elected  for  the  first  year  are: 

NAMES.  RESIDENCE. 

S.  L.  J.  [and  others].  San  Francisco,  Col. 

That  the  said  trustees  were  duly  elected  at  a  meeting-  of  the 
members  of  said  mission,  duly  convened  and  held  at  the  northeast 
corner  of  Fulton  and  Webster  streets,  for  the  purpose,  among 
other  things,  of  electing  trustees  to  take  charge  and  management 
of  its  property,  temporalities,  and  affairs,  and  to  form  this  in- 
corporation. That  a  majority  of  said  members  were  then  and 
there  present,  and  voted,  at  such  election,  for  the  above-named 
trustees,  as  is  more  particularly  set  forth  in  the  certificate  and 
verification  by  the  officers  who  conducted  the  election,  hereto  an- 
nexed and  made  part  of  these  articles. 

This  is  to  certify,  that  at  a  meeting  of  the  members  of  St.  S. 
E.  M.,  duly  convened  for  the  purpose  hereinafter  set  forth,  held 
at  the  northeast  corner  of  Fulton  and  Webster  streets,  on  Monday, 
the  tenth  day  of  April,  A.  D.  ipoj,  a  majority  of  said  members 
being  then  and  there  present,  who  voted  at  said  election. 

The  Rev.  E.  J.  L.  was  requested  to  preside,  and  /.  S.  M.  to  act 
as  secretary,  with  which  requests  they  respectively  complied. 

The  meeting  then  proceeded  to  the  election  of  fire  trustees,  to 
take  charge  and  management  of  the  property,  temporalities,  and 
affairs  of  the  St.  S.  E.  M.,  and  to  form  an  incorporation  under 
the  laws  of  the  state  of  California,  in  furtherance  of  the  objeci 
for  which  the  mission  is  founded. 

The  following  trustees  were  then  duly  elected,  viz : 
S.  L.  J.   [and  others], 
all  residents  of  the  city  and  county  of  San  Francisco,  state  of 
California. 

E.  J.  L.,  President. 
/.  S.  M.,  Secretary. 

No.  igg. — Certificate  that  Corporation  Continues  Its  Existence 
Under  Section  287,  Civil  Code,  by  Board  of  Directors. 

We,  the  undersigned,  composing  the  Board  of  Directors  of  The 
G.  P.  Co.,  a.  corporation  organized  on  the  tenth  day  of  December, 
1866.  under  the  laws  of  the  state  of  California,  and  in  existence 
on  the  first  day  of  January,  190^,  and  now  at  the  date  hereof  in 
existence,  hereby  certify  that  at  a  regular  meeting  of  said  Board 
of  Directors,  held  at  its  principal  place  of  business  at  408  Cali- 
fornia street,  in  the  city  and  county  of  San  Francisco,  cm  the  third 
day  of  June,  iqo§  (all  the  members  of  said  board  being  present), 


156  New  Book  of  Forms. 

a  resolution  was  offered  that  said  corporation  elect  to  contimie  its 
existence  under  the  provisions  of  the  California  Civil  Code.  Said 
resolution  was  put  to  a  vote  and  all  the  directors,  to  wit,  all  the 
undersigTied  directors,  voted  in  favor  of  said  resolution.  The 
president  of  the  Board  of  Directors  declared  that  the  said  resolu- 
tion was  adopted.    The  board  then  adjourned. 

Signed  by  all  directors  and  certified  by  tlie  secretary  under  the 
corporate  seal. 

NOTE.— California,  C.  a,  sec.  287. 


No.  200. — Certificate  that  Corporation  Continues  Its  Existence 
Under  Section  287,  Civil  Code,  by  Certificate  of  a  Majority 
of  Stockholders. 

[The  same  as  in  No.  ip6,  except  the  reference  is  to  stockholders 
representing  a  majority  of  the  capital  stock  (or  a  majority  of  the 
members  "where  there  is  no  capital  stock)  given  at  any  meeting 
of  the  stockholders  (or  members)  regularly  called  for  that  pur- 
pose.] 

NOTE.— California,  C.  C,  sec.  287. 

No.  201. — Application  for  Dissolution  of  Corporation. 

[Title  of  Court  and  Cause.] 
The  application  of  the  S.  U.  W.  and  M.  Co.  respectfully  shows: 

1.  That  said  S.  U.  W.  and  M.  Co.  is,  and  at  all  times  herein 
mentioned  or  referred  to  was,  a  corporation  organized  and  exist- 
ing under  the  laws  of  the  state  of  California,  and  had,  and  now 
has,  its  office  and  principal  place  of  business  situated  in  the  city 
and  county  of  San  Francisco,  in  said  state. 

Said  corporation  has  a  capital  stock  divided  into  three  hundred 
shares,  all  of  which  have  been  issued,  and  are  now  held  by  the 
stockholders  thereof.  Said  corporation  has  a  Board  of  Directors 
consisting  of  Hve  members,  a  majority  of  whom  have  signed  this 
application  as  such  directors.  All  debts  of,  and  all  claims  and  de- 
mands against,  said  corporation  have  been  satisfied  and  dis- 
charged, and  said  corporation  now  desices  to  be  dissolved. 

2.  On  May  17,  1904,  a  meeting  of  the  stockholders  of  said 
corporation  was  regularly  called  for  the  purpose  of  considering 
and  determining  whether  said  corporation  should  apply  for  its 
dissolution  ;  that  meeting  was  held  at  the  office  of  said  corporation 
in  said  San  Francisco  on  May  17,  1904,  all  of  the  stockholders  of 
said  corporation  were  then  and  there  present,  said  matter  by  them 
considered,  and  the  dissolution  of  said  corporation  by  them  then 
and  there  resolved  upon  by  more  than  a  two-thirds  vote,  namely, 
by  the  unanimous  vote  of  all  the  stockholders  of  said  corporation. 


Corporations.  157 

At  such  meeting-  the  Board  of  Directors  of  said  corporation  were, 
by  the  unanimous  vote  of  all  of  said  stockholders,  authorized  and 
directed  to  make  this  application  for  the  dissolution  of  said  cor- 
poration. 

Wherefore  said  applicant  prays  for  a  decree  of  this  court  dis- 
solving and  declaring  dissolved  the  said  corporation. 

Verified  as  a  pleading.      [See  Verification.] 

NOTE.— California,  C.  C.  P.,  sees.  1227-1234. 


No.  202. — Order  of  Publication  of  Notice. 

[Title  of  Court  and  Cause.] 

On  reading  the  application  of  the  S.  U.  W.  and  M.  Co.  for  its 
dissolution,  and  the  court  being  satisfied  that  said  application  is 
in  conformity  with  Title  VI  of  Part  III  of  the  Code  of  Civil 
Procedure  of  the  state  of  California,  it  is  ordered  that  the  same 
be  filed  with  the  clerk  of  this  court,  and  that  said  clerk  give  thirty 
days'  notice  of  the  said  application,  by  publication  once  a  week 
during  said  period  in  The  D.  R.  J.  of  C,  a  newspaper  of  general 
circulation  published  in  said  city  and  county  of  San  Francisco. 

NOTE.— California,  C.  C.  P.,  sees.  1227-1234. 

No.  203. — Certificate  of  Secretary. 

[Title  of  Court  and  Cause.] 

I  hereby  certify,  at  a  meeting  of  the  stockholders  of  the  S.  U. 
W.  and  M.  Co.,  held  at  its  office  in  San  Francisco  the  seventeenth 
day  of  May,  1^04,  regularly  called  for  the  purpose  of  determining 
whether  said  corporation  should  be  voluntarily  dissolved,  and  an 
application  for  such  dissolution  made  to  the  court,  there  was  pres- 
ent T.  D.,  owning  /pp  shares,  and  R.  D.,  owning  one  share  of  the 
capital  stock,  and  /.  F.  C,  owning  100  shares  of  the  capital  stock 
of  said  corporation,  and  which  ownership  so  appears  on  the  books 
of  the  corporation.  All  the  shares  of  said  corporation  being  so 
present  and  represented,  the  following  resolution  was,  upon  mo- 
tion duly  made  and  seconded,  carried  and  adopted  by  the  affirm- 
ative vote  of  all  the  stockholders  of  said  corporation. 

"Resolved:  That  this  corporation  be  dissolved,  and  that  the 
Board  of  Directors  of  this  corporation  make  application  to  the 
superior  court  of  the  city  and  county  of  San  Francisco,  state  of 
California,  for  the  dissolution  of  this,  to  wit,  the  S.  U.  JV.  and  M. 
Co.,  a  corporation." 

NOTE.— California,  a  C.  P.,  sees.  1227-1234. 


158  New  Book  of  Forms. 


No.  204. — Notice  by  Clerk  of  Application  for  Voluntary  Disso- 
lution. 

[Title  of  Court  and  Cause.] 

Notice  is  hereby  given  that  the  application  of  the  S.  U.  W.  and 
M.  Co.,  a  domestic  corporation,  for  the  dissolution  of  said  cor- 
poration, having  been  presented  to  above-named  court,  was  on 
May  24,  1904,  by  order  of  said  court  filed  with  the  clerk  of  said 
court,  and  said  clerk  directed  to  give  thirty  days'  notice  by  pub- 
lication of  said  application.  This  notice,  commencing  May  25, 
igo4,  will  expire  with  June  2^,  1904,  at  any  time  before  which 
expiration  any  person  may  file  herein  his  objections  to  said  ap- 
plication for  dissolution. 

NOTE.— California,  C.  C.  P.,  sees.  1227-1234. 

No.  205. — Decree  of  Disincorpo ration. 

[Title  of  Court  and  Cause.] 

The  voluntary  application  for  dissolution  of  the  S.  U.  W.  and 
M.  Co.,  a  domestic  corporation,  coming  on  regularly  this  day  for 
hearing  and  determination,  the  court  finds : 

1.  On  May  24,  1904,  in  accordance  with  the  order  of  the  judge 
of  this  court,  the  said  S.  U.  W.  and  M.  Co.  filed  with  the  clerk  of 
said  court  its  application  for  its  dissolution  as  a  corporation. 

2.  In  accordance  with  the  order  of  the  judge  of  this  court, 
the  clerk  of  said  court  has  given  thirty  days'  notice  of  said  ap- 
plication for  dissolution  by  publication  in  the  D.  J.  of  C,  a  news- 
paper of  general  circulation  printed  and  published  in  said  city  and 
county  of  San  Francisco,  which  thirty  days'  notice  and  said  pub- 
lication thereof  was  completed  and  expired  on  June  2^,  1904. 

3.  No  objection  to  said  application  for  dissolution  has  at  any 
time  been  filed  herein. 

4.  All  the  allegations  and  statements  in  said  application  for 
dissolution  made  are  true,  and  to  this  court,  by  the  evidence  intro- 
duced herein,  have  been  shown  so  to  be. 

Wherefore,  it  is  ordered,  adjudged  and  decreed  that  said  cor- 
poration, the  S.  U.  W.  and  M.  Co.,  be,  and  tlie  same  hereby  is,  and 
is  declared  to  be  dissolved. 

And  it  further  appearing  to  the  court  from  the  evidence  intro- 
duced herein,  that  the  Board  of  Directors  of  said  corporation  un- 
der its  articles  of  incorporation  consisted  of  five  members,  but 
that  at  and  prior  to  the  making,  presentation  and  filing  of  said 
application  for  dissolution  as  aforesaid,  and  ever  since  the  mem- 
bers of  said  board  had  by  resignation  and  disqualification  through 
nonownership  of  any  share  of  the  capital  stock  of  said  corpora- 


Corporations.  i  59 

tion,  been  reduced  to  three  members,  namely,  T.  D.,  J.  F.  C,  and 
R.  D.,  they  then  and  now  constituting  the  board  of  directors  of 
said  corporation. 

And  it  also  appearing-  to  the  court  herein  that  the  capital  stock 
of  said  corporation  is  divided  into  three  hundred  shares,  and  said 
shares  are  now  owned  and  held  as  follows:  Tzvo  hundred  and 
ninety-nine  of  said  shares  by  said  T.  D.,  one  hundred  of  said 
shares  by  /.  F.  C.  and  one  of  said  shares  by  R.  D. 

It  is  herein  ordered  and  decreed  that  said  T.  D.,  J.  F.  C.  and 
R.  D.  are  entitled  to  be,  and  by  the  court  are  herein  appointed, 
trustees  for  the  stockholders  of  said  corporation,  with  power  and 
direction  to  settle  all  the  affairs  of  said  corporation,  and  to  dis- 
tribute and  convey  all  the  property  of  said  corporation  to  its  said 
stockholders,  severally  or  as  tenants  in  common,  in  proportion  to 
the  number  of  shares  owned  and  held  by  said  stockholders  when 
such  distribution  and  conveyance  shall  be  made. 

NOTE.— California,  C.  C.  P.,  sees.  1227-1234. 

No.  206. — Resolution  to  Change  Principal  Place  of  Business. 

On  motion  of  Mr.  T.  B.  B.,  seconded  by  C.  N.  F.,  the  following 
resolution  was  passed  : 

Whereas,  it  appears  to  be  for  the  best  interests  of  this  corpora- 
tion that  its  principal  place  of  business  be  changed  from  the  city 
and  county  of  San  Francisco,  to  Giant  Station,  California,  where 
its  works  are  situated ;  and. 

Whereas,  the  consent  in  writing  to  make  said  change  of  the 
owners  and  holders  of  more  than  two-thirds  of  its  capital  stock 
has  been  obtained  and  filed  in  the  office  of  this  corporation : 

It  is  therefore,  resolved :  That  the  principal  place  of  business  of 
this  corporation  be  changed  from  the  city  and  county  of  San  Fran- 
cisco, to  Giant  Station,  Contra  Costa  county,  California,  and  that 
the  President  and  Secretary  give  notice  by  publication  of  said 
change,  in  the  manner  and  form  as  is  by  law  required. 

NOTE.— California,  C.  C,  sec.  321. 

No.  207. — Consent  of  Stockholders  to  Change  Place  of  Busi- 
ness. 

Whereas,  it  is  proposed  by  the  Board  of  Directors  of  The  G.  P. 
Co.,  Consolidated,  a  corporation  organized  under  the  laws  of  the 
state  of  California,  to  change  its  principal  place  of  business  from 
the  city  and  county  of  San  Francisco,  State  of  California,  to  Giant 
Station  in  the  county  of  Contra  Costa,   California. 

Now,  we  the  undersigned,  the  holders  of  more  than  two-thirds 
of  the  capital  stock  of  said  corporation,  hereby  consent  to  said 
chang-e. 


i6o  New  Book  of  Forms. 

Names.  No.  of  Shares. 

A.  B.  C,  and  others.  172^ 

NOTE. — California,  C.  C,  sec.  321. 

No.  208. — Consent  of  Stockholders. 

\ATiereas,  the  Board  of  Directors  of  The  G.  P.  Co.,  Consoli- 
dated, a  corporation  organized  and  doing  business  under  the  laws 
of  the  state  of  California,  having  adopted  a  resolution  to  change 
its  principal  place  of  business  from  the  city  and  county  of  San 
Francisco  to  Giant  Station,  in  the  county  of  Contra  Costa,  in  said 
state,  therefore,  we,  the  undersigned  holders  of  more  than  two- 
thirds  of  the  capital  stock  of  said  corporation,  hereby  consent  to 
said  change. 

Witness  each  of  our  names  signed  to  this  consent,  with  the 
amount  of  the  capital  stock  of  said  corporation  held  by  each  of 
us,  signing  as  aforesaid. 

NOTE.— California,  C.  C,  sec.  321. 

No.  209. — Notice  of  the  Change  of  Place  of  Business. 

Notice  is  hereby  given  that  at  a  meeting  of  the  Board  of  Di- 
rectors of  The  G.  P.  Co.,  Consolidated,  a  California  corporation, 
held  on  the  30th  day  of  January,  1905,  said  Board  of  Directors 
passed  a  resolution  that  the  principal  place  of  business  of  the  said 
The  G.  P.  Co.,  Consolidated,  be  changed  from  the  city  and  county 
of  San  Francisco,  state  of  California,  to  Giant  Station,  in  the 
county  of  Contra  Costa,  state  of  California;  and  further  notice  is 
given  that  the  owners  and  holders  of  more  than  tivo-thirds  of  the 
capital  stock  of  the  said  corporation,  to  wit,  over  fifteen  thousand 
shares,  have  consented  in  writing  to  said  change;  and  notice  is 
further  given  that  it  is  the  intention  of  the  said  The  G.  P.  Co., 
Consolidated,  to  change  its  principal  place  of  business  from  said 
city  and  county  of  San  Francisco,  to  said  Giant  Station,  in  the 
county  of  Contra  Costa,  state  of  California. 

NOTE. — California,  C.  C,  sec.  321. 

No.  210. — Resolution  (Final)  of  Board  of  Directors  Changing 
Place   of   Business. 

Whereas,  on  January  50,  190^.  more  than  two-thirds  of  the 
owners  and  holders  of  the  capital  stock  of  this.  The  G.  P.  Co., 
Consolidated,  to  wit,  over  15,000  shares,  consented  in  writing  to 
change  its  principal  place  of  business  from  the  city  and  county 
of  San  Francisco,  state  of  California,  to  Giant  Station,  in  tlie 
county  of  Contra  Costa,  California;  and  whereas,  the  said  con- 


Corporations.  i6i 

sent  was  filed  in  the  office  of  the  said  corporation  on  January  ^o, 
ipo^;  and  whereas,  on  January  50,  igo^,  the  Board  of  Directors  at 
a  meeting  thereof  unanimously  adopted  a  resolution  changing 
the  said  corporation's  principal  place  of  business  to  said  Giant 
Station,  and  ordered  notice  of  said  change  to  be  published  as  is 
by  law  required ;  and  whereas,  such  notice  was  published  once  a 
week  for  three  successive  weeks  in  the  "Recorder"  a  daily  paper 
printed  and  published  in  said  city  and  county,  commencing  Janu- 
(^^y  30,  ipoj,  and  ending  February  22,  iQOj,  and  whereas  a  copy 
of  the  resolution  of  the  Board  of  Directors  authorizing  said 
change,  together  with  a  copy  of  the  publication  of  notice  of  said 
change,  and  a  copy  of  the  affidavit  of  publication  of  said  notice, 
all  duly  certified  by  the  president  and  secretary  of  said  The  G.  P. 
Co.,  Consolidated,  has  been  filed  in  the  office  of  the  county  clerk 
of  the  said  city  and  county  and  in  the  office  of  the  Secretary  of 
State  of  said  state,  and  in  the  office  of  the  county  clerk  of  the 
county  of  Contra  Costa;  Therefore,  resolved  that  the  principal 
place  of  business  of  the  said  The  G.  P.  Co.,  Consolidated,  from 
and  after  the  adjournment  of  this  meeting,  is  at  said  Giant  Sta- 
tion, Contra  Costa  county;  and,  resolved,  that  this  board  now 
adjourn  to  meet  on  February  2/,  ipo^,  at  its  office  at  said  Giant 
Station,  at  p  o'clock  A.  M. 

NOTE.— California,  C.  C,  sec.  321. 

No.  211. — Application  for  Change  of  Name. 

[Title  of  Court  and  Cause.] 

To  the  Superior  Court  of  the  City  and  County  of  San  Francisco, 
State  of  California: 

The  petition  of  J^he  P.  P.  Co.,  a  corporation,  shows  that  it 
was  incorporated  under  the  laws  of  the  state  of  California  on  the 
jrf  day  of  June,  ipoi.  Its  present  name  is  The  P.  P.  Co.  It 
proposes  to  change  its  name  to  The  P.  M.  and  C.  C  Co.  The 
reason  for  such  change  is  as  follows :  This  corporation  zt'os  or- 
ganized by  farmers  7vho  shipped  their  crops  to  merchants  en- 
gaged in  selling  farm  produce  to  retailers  for  daily  consump- 
tion, and  for  the  mutual  benefit  of  both  producers  and  consumers. 
The  present  name  seems  to  limit  the  object  of  the  corporation 
to  the  protection  of  the  interests  of  the  producers,  and  ha^  been 
the  cause  of  unfazvrable  comment,  notzcithstanding  the  fact  that 
one-third  of  its  capital  stock  is  oumed  by  consumers. 

Wherefore,  petitioner  pravs  that  its  name  be  changed  from  N. 
P.  D.  and  C.  W.  Works  to  /.  A.  N.  P.  D.  and  C.  Works. 

NOTE. — California:    The    petition   must   be    signed   by   a    majority    of 
the  board  of  directors,  and  sisrned  as  diroetors.     A  copy  of  the  petition 
muat  be  published  for  four  successive  weeks;   C.  C.  P.,  sees.   1275-1279. 
New  Forms — 11 


i62  New  Book  of  Forms. 


No.  212. — Notice  of  Application  for  Change  of  Name. 

[Title  of  Court  and  Cause.] 

To  the  Honorable  Superior  Court  of  said  City  and  County: 

Your  petitioner  represents  that  it  is  a  corporation,  and  was  in- 
corporated under  the  laws  of  the  state  of  California  on  the  23d 
day  of  December,  ipo2. 

That  its  present  name  is  N.  P.  D.  and  C.  Works,  and  it  de- 
sires to  change  its  name  to  /.  A.  N.  P.  D.  and  C.  Works. 

That  the  reasons  for  such  change  of  name  are  as  follows :  Sev- 
eral other  individuals  and  corporations  are  doing  business  in 
San  Francisco  under  names  very  similar  to,  if  not  identical  with, 
the  present  name  of  this  corporation. 

No.  213. — Notice  of  Application  for  Change  of  Name. 
[The  same  as  in  No.  211,  except  for  different  reasons.] 

[Title  of  Court  and  Cause.] 

That  its  present  name  is  the  A.  I.  and  R.  Society.  That  it  de- 
sires to  change  its  name  for  the  reason  that  the  present  name 
has  been  found  to  suggest  to  people  unacquainted  with  said  busi- 
ness that  the  corporation  is  organized  and  conducted  as  a  co- 
operative association  and  does  not  suggest  the  purposes  for 
which  said  corporation  was  organized. 

That  your  petitioners  desire  that  its  name  be  changed  from 
the  A.  I.  and  R.  Society  to  the  R.  B.  T.  Co. 

No.  214. — Order  of  Publication — Change  of  Name. 

[Title  of  Court  and  Cause.] 

It  is  hereby  ordered  that  the  hearing  of  the  application  for 
change  of  name  in  the  foregoing  proceedings  be,  and  the  same  is 
hereby,  set  for  Thursday,  the  ninth  day  of  February,  1905,  at  10 
o'clock  A.  M.  of  said  day,  and  that  a  copy  of  said  petition  be  pub- 
lished in  "The  Recorder,"  a  newspaper  printed  and  published  in 
the  city  and  county  of  San  Francisco,  according  to  law,  for  four 
weeks  successively  next  preceding  the  said  day  of  hearing. 

NOTE.— California,  C.  C.  P.,  sec.  1275. 

No.  215. — Objections  to  Change  of  Name  of  Corporation. 

[Title  of  Court  and  Cause.] 

Now  comes  A.  B.,  C.  D.,  B.  F.  and  G.  H.,  and  objecting  to 
the  proposed  change  of  the  name  of  The  P.  P.  Co.  to  The  P.  aiui 


Corporations.  163 

C.  C.  Co.,  and  for  reasons  why  such  name  should  not  be  changed 
state  the  facts  to  be  that :  Said  applicant  corporation  is  engaged 
in  the  business  of  selling  farm  produce  on  commission.  That 
the  Board  of  Directors  own  and  control  a  majority  of  all  its  stock. 
That  the  corparation  is  doing  a  profitable  business,  and  its  only 
business  is  to  make  all  the  money  it  can  out  of  producers  zvithout 
reference  to  consumers ;  and  is  a  member  of  a  combination  of 
commission  merchants  that  have  subscribed  to  a  pledge  not  to 
sell  to  consumers.  That  its  only  object  in  changing  its  name  is 
to  prevent  any  other  corporation  from  organising  and  adopting 
the  name  it  proposes  to  assume.  That  the  undersigned  objectors 
are  consumers  and  not  sellers  of  farm  produce,  and  are  nozv 
engaged  in  organizing  a  co-operative  corporation  under  the  iden- 
tical name  proposed  by  the  said  change  of  name,  which  said  pro- 
posed change  of  name  will  stiiie. 

Wherefore  we  request  the  court  to  deny  said  petition. 

NOTE.— CaHfornia,  C.  C,  sees.  1276-1279. 

No.  216. — Order  Changing  Name. 

[Title  of  Court  and  Cause.] 

It  appearing  to  the  court  that  sufficient  cause  exists  therefor, 
it  is  ordered  that  the  corporation  described  in  the  application 
herein  as  the  A.  B.  Company  be,  and  the  same  is  by  this  order, 
changed  to  the  C.  D.   Company. 

NOTE.— California,  C.  C.  P.,  sec.  1278. 

No.   217. — Notice   of  Annual   Meeting. 

B.  Silver  Mining  Company. — Office,  No.  522  Montgomery 

street. 

The  regular  annual  meeting  of  the  stockholders  of  this  com- 
pany will  be  held  at  the  office  of  the  company,  on  Monday,  Sep- 
tember 6,  igoj.  at  twelve  o'clock  M. 

By  order  of  the  President. 

No.  218. — Notice  of  Annual  Meeting — Election  of  Directors. 

Y.  H.   Gold  and   Silver   Mining   Company. — Placerville,   El 
Dorado  County,  California. 

The  annual  meeting  of  the  stockholders  of  the  above  company 
will  be  held  at  the  office,  52S  Montgomery  street,  San  Francisco, 
on  Tuesday,  August  10,  190$,  at  Hve  o'clock  P.  M.,  for  the  elec- 
tion of  Hvc  directors  for  the  ensuing  year.  Every  stockholder 
is  requested  to  be  present  in  person  or  by  proxy. 


164  New  Book  of  Forms. 


No.  219. — Notice  of  Annual  Meeting — Another  Form. 

B.  U.  Gold  and  Silver  IMining  Company. — San  Francisco  Dis- 
trict, Territory  of  Arizona. 
Notice  is  hereby  given  that  the  Urst  annual  meeting  of  the 
stockholders  of  the  above-named  company  will  be  held  at  the  office 
of  the  company,  No.  yo2  Washington  street,  in  the  city  of  San 
Francisco,  on  Wednesday,  the  iirst  day  of  August,  ipoj,  at  tzvo 
o'clock  P.  M.,  for  the  election  of  five  directors  for  the  ensuing 
year,  and  transaction  of  such  other  business  as  may  come  before 
them. 

No.    220. — Notice   of  Annual   Meeting. 

The  regular  annual  meeting  of  the  stockholders  of  the  A.  O. 
Company  will  be  held  at  the  office  of  the  company,  San  Francisco, 
California,  on  Tuesday,  the  fourteenth  day  of  February,  igoj,  at 
the  hour  of  ten  o'clock  A.  M.,  for  the  purpose  of  electing  a  Board 
of  Directors  to  serve  for  the  ensuing  year,  and  the  transaction  of 
such  other  business  as  may  come  before  the  meeting. 

Transfer  books  will  close  on  Thursday,  February  pth,  at  5 
o'clock  P.  M. 

NOTE. — California,  C.  C,  sees.  301,  302. 

No.  221. — Notice  of  Special  Meeting  of  the  Stockholders. 

Notice  is  hereby  given  that  in  pursuance  of  a  resolution  of  the 
Board  of  Directors  of  the  C.  S.  W.  and  P.  Co.,  a  corporation, 
organized  and  existing  under  the  laws  of  the  state  of  California, 
adopted  at  a  special  meeting  of  said  board,  duly  held  on  the 
twenty-third  day  of  January,  A.  D.  1905,  at  the  office  of  said  cor- 
poration, in  the  city  and  county  of  San  Francisco,  State  of  Cali- 
fornia, a  meeting  of  the  stockholders  of  said  corporation  is  hereby 
called  for,  and  will  be  held  at  the  office  of  said  corporation,  at 
room  16  of  the  Halleck  block.  No.  520  Sansome  street,  city  and 
county  of  San  Francisco,  State  of  California  (said  place  of  meet- 
ing being  at  the  principal  place  of  business  of  said  corporation, 
and  at  the  room  and  building  where  the  Board  of  Directors 
thereof  usually  meet),  on  Monday,  the  twenty-seventh  day  of 
March,  1905,  at  three  o'clock  P.  M.  on  that  day,  for  the  purpose 
of  considering  and  acting  upon  the  proposition  of  creating  a 
bonded  indebtedness  of  the  said  corporation  to  the  amount  of 
six  hundred  thousand  dollars  ($600,000)  gold  coin  of  the  United 
States ;  and  for  the  purpose  of  transacting  such  other  and  fur- 
ther business  as  may  properly  come  before  said  meeting. 

NOTE. — California,  C.  C,  sec.  359. 


Corporations.  165 

No.  222. — Notice  of  Directors'  Meeting, 
To  A.  B. 

Please  take  notice  that  there  will  be  a  meeting  [regular  or 
special]  of  the  Board  of  Directors  of  the  C.  D.  E.  Company  on 
Monday,  June  j,  iQod,  at  its  office  at  No.  igy  Hayzvard  Building, 
San  Francisco,  California,  on  July  7,  J905,  at  p;}o  A.  M. 

No.   223. — Assessment   Notice. 
U.  C.  M.  Company. 

Location  of  principal  place  of  business,  San  Francisco,  Cali- 
fornia. Location  of  works,  Virginia  Mining  District,  Storey 
County,  State  of  Nevada. 

Notice  is  hereby  given,  that  at  a  meeting  of  the  board  of  direct- 
ors, held  on  the  nineteenth  day  of  January  1905,  an  assessment 
(No.  i)  of  -fifteen  cents  per  share  was  leaned  upon  the  capital 
stock  of  the  corporation,  payable  immediately,  in  United  States 
gold  coin,  to  the  secretary,  at  the  office  of  the  company,  room  75, 
Nevada  block,  No.  ^09  Montgomery  street,  San  Francisco,  Cali- 
fornia. 

Any  stock  upon  which  this  assessment  shall  remain  unpaid  on 
Friday,  the  twenty-fourth  day  of  February,  igoj,  will  be  de- 
linquent, and  advertised  for  sale  at  public  auction ;  and  unless 
payment  is  made  before,  will  be  sold  on  Thursday,  the  sixteenth 
day  of  March,  igoj.  to  pay  the  delinquent  assessment,  together 
with  costs  of  advertising  and  expenses  of  sale. 

By  order  of  the  board  of  directors. 

A.  P.  S.,  Secretary. 

Office — Room  75.  Nevada  block.  No.  jog  Montgomery  street, 
San  Francisco,  California. 

NOTE.— Cnlifornia.  C.  C,  sees.  331 -.349.  Notice  must  bear  the  "sig- 
nature" of  the  secretary,  with   the  location  of   the  company's   office. 

No.   224. — Order  Rescinding  Assessment. 

Resolved,  that  the  assessment  No.  i  [of  fifteen  cents]  levied 
January  ig,  igof,,  be,  and  the  same  is  hereby,  rescinded. 

No.  225. — Delinquent  Sale  Notice. 

H.  S.   Company. 

Location  of  principal  place  of  business,  San  Francisco,  Cali- 
fornia. 

Notice. — There  is  delinquent  upon  the  following  described 
stock,  on  account  of  assessment  (No.  i),  levied  on  the  fourteenth 


l66  New  Book  of  Forms. 

day  of  December,   1904,  the  several  amounts  set  opposite  tlie 
naxnes  of  the  respective  shareholders,  as  follows: 

No.  No. 

Name.                                                            Cert.  Shs.  Amt. 

R.  G.  H p  10  $100  00 

J.  M.  D 4  5  50  00 

F.  L.  0 5  5  50  00 

And  in  accordance  with  law,  and  an  order  of  the  Board  of 
Directors,  made  on  the  fourteenth  day  of  December,  1904,  so 
many  shares  of  each  parcel  of  such  stock  as  may  be  necessary 
will  be  sold  at  public  auction,  at  the  office  of  the  company,  Nos. 
6ij-6ig  Sansome  street,  San  Francisco,  California,  on  Saturday, 
the  fourth  day  of  February,  ipo6,  at  the  time  of  eleven  o'clock 
A.  M.  of  said  day,  to  pay  said  delinquent  assessment  thereon, 
together  with  costs  of  advertising  and  expenses  of  the  sale. 

Office. — Nos.  617,  61Q  Sansome  street,  San  Francisco,  Cali- 
fornia. 

NOTE. — This  notice  must  have  the  "name"  of  the  secretary  with 
location  of  office:  C.  C,  sees.  331-349. 

No.  226. — Extending  Time  of  Delinquent  Sale. 

Resolved,  that  the  time  fixed  in  the  [describe  the  assessment, 
etc.,  and  notice  of  sale]  be,  and  the  same  is  extended  to  the  tirst 
day  of  March,  1905,  at  the  hour  of  eleven  o'clock  of  said  day. 

NOTE.— CaUfornia,  a  C,  sec.  345. 

No.  227. — Waiver  of  Further  Proceeding  and  Sale  Under  As- 
sessments. 

Resolved,  that  all  further  proceedings  for  the  collection  of  the 
delinquent  or  the  entire  assessment  [describe  it]  [or  the  part  de- 
linquent] are  by  this  resolution  waived ;  and  this  corporation  here- 
by elects  to  proceed  by  action  to  recover  the  amount  of  said  as- 
sessment delinquent  and  the  costs  and  expenses  already  incurred. 

NOTE. — California,  C.  C,  sec.  349. 

No,  228. — Bond  of  Indemnity — Lost  Stock. 

Whereas,  certificate  No.  11,502  of  the  C.  V.  M.  Co.,  dated  May 
2,  1905,  for  twenty  shares,  in  the  name  of  /.  B.,  has  been  lost. 
Now,  we,  the  undersigned,  are  bound  unto  the  C.  V.  M.  Co.  in 
the  sum  of  one  thousand  dollars,  in  consideration  of  the  issuance 
of  a  new  certificate  of  stock  for  twenty  (20)  shares  of  the  capital 


Corporations.  167 

stock  of  said  company,  in  place  of  said  certificate  lost  or  mislaid. 
And  we  agree  to  hold  the  said  C.  V.  M.  Co.  harmless  and  free 
from  all  loss,  damage,  counsel  fees  and  costs  incurred,  or  to  be 
incurred,  by  reason  of  said  loss,  and  in  case  said  certificate  of 
stock  should  be  hereafter  presented  to  said  company  for  transfer. 

No.  229, — Power  of  Attorney — Transfer  of. 

Know  all  Me;n  by  the:se  Presents:  That  I,  A.  B.,  for  value 
received,  have  bargained,  sold,  and  assigned,  and  by  these  pres- 
ents do  bargain,  sell,  and  assign  unto  L.  M.  the  following  de- 
scribed stock,  to  wit:  [describe  the  kind  of  stock'\  unto  me  be- 
longing, and  held  by  certificate  No.  888,  in  my  name,  and  here- 
unto annexed,  and  do  hereby  constitute  and  appoint  A''.  M.  the 
Secretary  of  said  company,  my  true  and  lawful  attorney,  irrev- 
ocably, for  me  and  in  my  name  and  stead,  to  assign  and  transfer 
the  said  stock  unto  the  said  L.  M.,  and,  for  that  purpose,  to 
make  and  execute  the  necessary  acts  of  assignment  and  transfer, 
and  an  attorney,  or  attorneys,  under  him  for  that  purpose,  to 
make,  and  substitute,  and  to  do  all  other  lawful  acts  requisite 
for  effecting  the  premises,  hereby  ratifying  and  confirming  the 
same. 

In  witness  whereof,  etc. 

No.  230. — Proxy  to  Vote. 

Know  all  Men  by  thijse  Presents:  That  I,  A.  B.,  of  San 
Francisco,  do  hereby  constitute  and  appoint  G.  C.  to  be  my  law- 
ful attorney,  substitute  and  proxy,  for  me  and  in  my  name,  to 
vote  on  all  the  stock  held  by  me  in  the  T.  M.  Co.,  and  at  any 
election  for  directors,  as  fully  as  I  might  or  could  do,  were  I 
personally  present  at  such  election. 

No.   231. — Protest   of   a   Director   of  a   Corporation   Against 
Dividend  to  be  Spread  on  the  Minutes. 

Whereas,  I  opposed  the  motion  made  by  Director  A.  B.  C.  at 
this  meeting  to  declare  a  dividend  of  $100  a  share  upon  the 
capital  stock  of  this  corporation ;  and  whereas,  said  motion  was 
carried  and  said  dividend  declared  without  my  vote,  now,  be  it 
known  that  I  dissent  from  the  declaration  of  said  dividend  and 
demand  that  my  dissent  be  entered  at  large  on  the  minutes  of 
this  meeting. 

NOTE. — California:  If  dividends  are  made  except  from  the  surplus 
profits  of  a  corporation,  or  if  debts  are  created  beyond  the  capital  stock 
or  if  any  of  the  capital  stock  is  divided  or  paid  to  stockholders,  or  if 
the  capital  stock  is  increased  or  reduced  except  as  by  law  provided, 
all  the  directors  at  a  meeting  when  any  of  the  above  things  are  done, 
who  do  not  dissent  and  cause  their  dissent  to  be  entered  on  the  minutes 
of  the  meeting  are  liable,  jointly  and  severally,  for  the  amount  diverted, 
and  the  statute  of  limitations  never  runs  in  their  favor:  C.  C,  sec.  309. 


i6S  New  Book  of  Forms, 

No.  232. — Corporation — By-laws. 
BY-LAWS  OF  THE  B.  T.  COMPANY, 

ARTICLE   I. 

Its  officers  are  President,  Vice-President,  Treasurer,  and  Sec- 
retary, who  shall,  with  the  exception  of  the  Secretary  and  Treas- 
urer, be  chosen  at  a  meeting  of  the  Board  of  Directors  from 
among  themselves. 

ARTICLE    II. 

Section  i.  The  Board  of  Directors  shall  be  elected  at  4he  an- 
nual meeting  of  stockholders,  to  serve  for  one  year  from  the  first 
Monday  of  May,  ipo^,  and  until  their  successors  are  elected  and 
qualified. 

Sec.  2.  No  stockholder  shall  be  eligible  for  election  as  a 
member  of  the  Board  of  Directors  unless  he  is  a  bona  fide  owner 
of  at  least  tzvo  shares  of  the  capital  stock  of  the  company  at  the 
time  of  his  election. 

ARTICLE   III. 

Section  i.  President.  The  President  shall  preside  at  all 
meetings  of  the  directors  or  stockholders.  He  shall  sign,  as 
President,  all  certificates  of  stock,  and  all  contracts,  and  other 
instruments  in  writing  which  have  been  first  approved  by  the 
Board  of  Directors.  He  shall  draw  all  checks  and  warrants 
upon  the  treasury.  He  shall  call  the  directors  together  when- 
ever he  deems  it  necessary;  and  he  shall  have,  subject  to  the  ad- 
vice and  control  of  the  directors,  the  general  superintendence  of 
the  affairs  of  the  company.  In  the  absence  of  the  President,  the 
Vice-President  shall  perform  his  duties. 

Sec.  2.  Treasurer.  It  shall  be  the  duty  of  the  Treasurer  to 
keep  safely  all  moneys  and  bullion  belonging  to  the  company, 
and  disburse  the  same  under  the  direction  of  the  Board  of  Direc- 
tors, on  warrants  signed  by  the  President  and  Secretary.  At  each 
annual  meeting  of  the  stockholders,  he  shall  submit  a  complete 
statement  of  his  accounts  for  the  past  year,  with  the  proper  vouch- 
ers, for  their  information.  He  shall  discharge  such  other  duties 
pertaining  to  his  office  as  shall  be  prescribed  by  the  Board  of 
Directors. 

Sec.  3.  Secretary.  It  shall  be  the  duty  of  the  Secretary  to 
keep  a  record  of  the  meetings  of  the  Board  of  Directors  and  of 
the  stockholders.  He  shall  keep  the  book  of  blank  certificates  of 
stock,  fill  up  and  countersign  all  the  certificates  issued,  and  make 
the  corresponding  entries  on  the  margin  of  each  book,  on  such 
issuance.  He  shall  keep  a  proper  transfer  book,  and  a  stock 
ledger  in  debit  and  credit  form,  showing  the  number  of  shares 


Corporations.  169 

issued  to  and  transferred  bv  any  stocklinU'cr.  and  the  dates  of 
such  issuance  and  transfer.  PTe  shall  countersig^n  all  checks,  keep 
proper  account  books,  and  discharge  such  other  duties  as  p-ertain 
to  his  ofl&ce,  and  are  prescribed  by  the  Board  of  Directors. 

ARTICLE   IV. 

The  Board  of  Directors  shall  have  power:  i.  To  call  meetings 
of  stockholders  when  they  deem  necessary,  giving  not  less  than 
two  weeks'  notice  thereof,  in  manner  as  hereinafter  provided ; 
and  they  shall  call  meetings  of  the  stockholders  at  any  time, 
upon  a  written  request  for  that  purpose,  of  persons  representing 
one-tenth  of  all  the  capital  stock.  2.  To  make  rules  and  regula- 
tions not  inconsistent  with  the  laws  of  the  state  of  Califoruia  or 
the  by-laws  of  the  company,  for  the  guidance  of  the  officers  and 
management  of  the  affairs  of  the  company.  3.  To  declare  divi- 
dends out  of  the  surplus  profits,  whenever  they  shall  deem  it 
expedient.  4.  To  incur  such  indebtedness  as  they  may  deem 
necessary ;  proznded,  however,  that  no  indebtedness  over  one  thou- 
sand dollars  shall  at  any  time  be  incurred  by  the  company,  and 
to  authorize  the  execution,  by  the  President  and  Secretary,  of 
any  note  for  such  indebtedness. 

ARTICLE  V. 

It  shall  be  the  duty  of  the  Board  of  Directors:  I.  To  cause  to 
be  kept  a  complete  record  of  all  their  meetings  and  acts,  and  also 
of  the  proceedings  of  the  stockholders ;  and  to  present  a  full 
statement  at  the  regiilar  annual  meeting  of  the  stockholders, 
showing  in  detail  the  assets  and  liabilities  of  the  company,  and 
generally  the  condition  of  its  aflfairs.  A  similar  statement  shall 
be  presented  to  any  other  meeting  of  the  stockholders,  when 
thereto  required  by  persons  representing  at  least  one-tenth  of  the 
capital  stock  of  the  company.  2.  To  supervise  all  the  acts  of 
the  officers  and  employees,  require  the  Secretary  and  Treasurer 
to  keep  full  and  accurate  books  and  accounts,  and  to  prescribe 
the  form  and  mode  of  keeping  such  books.  3.  To  cause  to  be 
issued  to  the  stockholders,  in  proportion  to  their  several  inter- 
ests, certificates  of  stock,  not  to  exceed  in  the  aggregate  the 
capital  stock  of  the  company.  4.  To  cause  the  moneys  of  the 
company  to  be  safely  kept,  directing,  from  time  to  time,  where 
they  shall  be  kept  or  deposited. 

ARTICLE  VI. 

A  General  Superintendent  shall  be  appointed  by  the  Board  of 
Directors,  and  be  removable  at  their  pleasure,  it  shall  be  his 
duty:  I.  To  take  charge  of  all  the  property  belonging  to  the 
company,  and  to  control  and  direct  all  labor  and  business  per- 
taining to  the  interests,  objects,  and  operations  of  the  company, 


170  New  Book  of  Forms. 

at  the  mines,  but  entirely  subject  to  the  direction  and  control  of 
the  Board  of  Directors,  or  of  the  President  of  the  company. 
2.  To  make  monthly  returns  to  the  Board  of  Directors,  of  all 
persons  hired  or  employed  at  the  mines  and  works,  add  a  state- 
ment of  all  expenditures,  accompanying  the  same  with  the  neces- 
sary vouchers,  and  a  similar  statement  of  ore  extracted,  and  the 
disposition  of  the  same,  and  report  the  general  condition  of  the 
mines  and  works.  3.  To  make  requisition  upon  the  Board  of 
Directors  for  necessary  funds,  stating  the  precise  objects  for 
which  they  are  required,  and,  if  approved  by  the  Board,  the  money 
shall  be  transmitted  to  him  in  such  mode  as  they  may  direct ;  but 
he  shall  not  have  the  power  to  sign  notes  or  contracts  for  the 
company ;  neither  shall  he  have  the  power  to  incur  any  indebted- 
ness, unless  so  especially  authorized  by  the  President  or  Board  of 
Directors. 

ARTICLE   VII. 

The  members  of  the  Board  of  Directors  shall  receive  no  com- 
pensation for  their  services  as  such,  nor  shall  the  company  be 
held  liable  for  any  services  rendered,  except  it  is  so  expressly 
provided;  but  members  of  the  board  shall  be  allowed  their  rea- 
sonable traveling  expenses  when  actually  engaged  in  the  busi- 
ness of  the  company,  to  be  audited  and  allowed  as  in  othe"  cases 
of  demand  against  the  company.  The  Secretary  and  Superin- 
tendent shall  receive  such  compensation  for  their  services  as  the 
Board  of  Directors  shall  determine. 

ARTICI.E;   VIII. 

No  contract  by  any  officer  of  the  company  shall  be  valid  ^vith- 
out  the  previous  authorization  or  subsequent  ratification  of  the 
Board  of  Directors. 

ARTICLE   IX. 

Section  i.  The  regular  annual  meeting  of  the  stockholders 
shall  be  held  oti  the  Urst  Monday  of  May  of  each  year,  at  the 
office  of  the  company,  in  the  city  and  county  of  San  Francisco, 
California.  A  representation  of  a  majority  of  the  capital  stock 
shall  be  necessary  for  the  transaction  of  the  business  of  all  meet- 
ings of  stockholders.  At  such  meetings  a  representation  by 
proxy,  duly  appointed,  shall  be  allowed,  such  proxy  to  be  in 
writing,  and  filed  with  the  Secretary  of  the  company. 

Sec.  2.  A  regular  luonthly  meeting  of  the  Board  of  Direct- 
ors shall  be  held  on  the  first  Tuesday  of  each  month,  and  special 
meetings  of  the  board  may  be  called  by  the  President,  whenever 
he  may  deem  it  expedient.  A  majority  of  the  Board  of  Directors 
shall  constitute  a  quorum  for  the  transaction  of  business. 

Sec.  3.  All  meetings  of  the  stockholders  shall  be  called  by  a 
notice  published  at  least  three  times  a  week  for  two  weeks  in  a 


Corporations.  171 

daily  newspaper  in  the  said  city  and  county,  and  also  in  some 
daily  paper  published  at  the  city  of  Salt  Lake,  Territory  of  Utah. 

article;  X. 

Certificates  of  stock  shall  be  of  such  form  and  device  as  the 
Board  of  Directors  may  direct,  and  such  certificates  shall  be 
sic^ned  by  the  President  and  Secretary,  and  express  on  its  face 
their  number,  date  of  issuance,  number  of  shares  for  which  and 
the  persons  to  whom  issued.  Several  certificates  may  be  issued 
•to  the  same  person  or  persons,  provided  that  in  the  aggregate 
they  do  not  exceed  the  number  of  shares  belonging  to  such  per- 
son or  persons.  The  certificate-book  shall  contain  a  margin  on 
which  shall  be  entered  the  number,  date,  number  of  shares,  and 
the  name  or  names  of  the  person  or  persons  expressed  in  the 
corresponding  certificates. 

ARTICLE  XI. 

Shares  of  the  company  may  be  transferred  at  any  time  by  the 
holders  thereof,  or  by  attorney  legally  constituted,  or  by  legal 
representative.  But  no  transfer  shall  be  valid  except  between 
the  parties  thereto,  until  entered  in  the  proper  form  on  the  books 
of  the  company.  The  surrendered  certificates  shall  be  canceled 
before  a  new  certificate  shall  be  issued  in  lieu  thereof.  The  re- 
ceiver of  the  new  certificate  shall  be  required  to  signify  his  as- 
sent to  the  by-laws  of  the  company;  and  no  transfer  of  any 
share  of  stock  shall  be  valid,  upon  which  any  assessments  are  due 
and  unpaid,  or  to  the  holder  of  which  is  indebted  to  the  com- 
pany on  any  account  whatever,  without  the  consent  of  the  Board 
of  Directors. 

ARTICLE  XII. 

The  books  and  papers,  in  the  office  of  the  Secretary  and 
Treasurer,  shall  at  all  times  during  business  hours  be  open  to 
the  inspection  of  the  Board  of  Directors,  and  of  any  stockholder. 

ARTICLE  XIII. 

These  by-laws  may  be  altered  or  amended  at  any  annual  meet- 
ing of  the  company,  or  at  any  special  meeting  called  for  that 
purpose,  by  a  vote  of  two-thirds  of  the  subscribed  stock.  Also 
by  a  vote  of  a  majority  of  the  Board  of  Directors  at  any  meet- 
ing of  the  board. 

ARTICLE   XIV. 

These  by-laws  shall  always  remain  in  possession  of  the  Secre- 
tary of  the  company  and  may  be  inspected  at  any  time  during 
office  hours  by  any  stockholder. 


172  New  Book  of  Forms. 


CERTIFICATE. 

We,  the  undersigned,  a  majority  of  the  directors  of  the  B.  T. 
Co.,  hereby  certify  that  the  foregoing  By-laws,  consisting  of 
fifteen  articles,  have  been  duly  adopted  as  the  by-laws  of  said 
corporation. 

Witness  our  hands,  this  tcnt/i  day  of  May,  Jpo^. 

NOTE. — Under  the  laws  of  California,  by-laws  must  be  adopted  within 
one  month  after  filing  articles  of  incorporation,  and  must  be  copied  into 
a  book,  to  be  known  as  the  "Book  of  By-laws";  and  no  by-law  taJses 
effect  until  so  copied.  C.  C,  sees.  301,  304. 

It  is  suggested  that  a  day  certain  be  set  in  the  by-laws  for  directors' 
meetings.  Then  notice  will  be  unnecessary.  One  meeting  a  month  ought 
to  be  sufficient.  If  other  meetings  are  necessary,  they  may  be  specially 
called. 

This  form  is  altogether  too  wordy  for  general  use.  It  was  intention- 
ally thus  constructed;  so  that  there  would  be  sufficient  matter  out  of 
which  all  necessary  rules  might  be  condensed  and  formulated.  It  is  not 
possible  to  draw  a  form  applicable  to  all  seemingly  similar  corporations. 


No.  233. — By-laws  Adopted  by  Assent  of  Stockholders. 

We,  the  undersigned,  being  the  holders  of  two-thirds  of  the 
subscribed  capital  stock  of  the  A.  B.  [the  corporation  to  the  By- 
lazcs  of  which  the  certificate  is  attached  or  at  the  end  of  which  it 
is  written],  hereby  assent  to  the  foregoing  By-laws. 

Witness  our  hands  this  ^d  day  of  June,  ipo6. 

Names.  No.  of  Shares. 

NOTE.— California,  C.   C,  sees.   301-304. 

No.    234. — Certificate   to   By-laws. 

We,  the  undersigned,  hereby  certify  that  the  foregoing  writ- 
ing, consisting  of  twelve  sections,  and  dated  June  j,  igo6,  are  the 
By-laws  of  the  A.  B.  Company,  a  corporation  organized  under 
the  laws  of  the  state  of  California,  and  that  the  said  By-laws 
were  adopted  by  the  written  assent  [or  otherwise,  as  the  case 
may  be]  of  the  holders  of  its  capital  stock. 

[Certified  by  a  majority  of  the  Board  of  Directors  and  Sec- 
retary.] 

NOTE.— California,  C.  C.,  sees.  301-304. 


Deeds — Grants— Conveyances.  173 


DEEDS— GKANTS— CONVEYANCES. 

Modes  of  Transferring  Title. — A  transfer  may  made  with- 
out writing,  in  every  case  in  which  a  writing  is  not  expressly 
required  by  statute. 

Grant,  What  is. — A  transfer  in  writing  is  called  a  grant,  or 
conveyance,  or  bill  of  sale.  The  term  "grant,"  in  this  and  the 
next  two  articles,  inckides  all  these  instruments,  unless  it  is 
specially  applied  to  real  property. 

Delivery. — A  grant  takes  effect,  so  as  to  vest  the  interest 
intended  to  be  transferred,  only  upon  its  delivery  by  the  grantor. 

Delivery  Presumed. — A  grant  duly  executed  is  presumed 
to  have  been  delivered  at  its  date. 

Delivery  to  Grantee  is  Absolute. — A  grant  cannot  be  de- 
ITvered  to  the  grantee  conditionally.  Delivery  to  him,  or  to  his 
agent  as  such,  is  necessarily  absolute,  and  the  instrument  takes 
effect  thereupon,  discharged  of  any  condition  on  which  the  de- 
livery was  made. 

Delivery  in  Escrow. — A  grant  may  be  deposited  by  the 
grantor  with  a  third  person,  to  be  delivered  on  performance  of  a 
condition,  and,  on  delivery  by  the  depositary,  it  will  take  effect. 
While  in  the  possession  of  the  third  person,  and  subject  to  con- 
dition, it  is  called  an  escrow. 

Redelivery,  Effect  of. — Redelivering  a  grant  of  real  prop- 
erty to  the  grantor,  or  canceling  it,  does  not  operate  to  retrans- 
fer  the  title. 

Constructive  Delivery. — Though  a  grant  be  not  actually 
delivered  into  the  possession  of  the  grantee,  it  is  yet  to  be  deemed 
constructively  delivered  in  the  following  cases:  i.  Where  the 
instrument  is,  by  the  agreement  of  the  parties  at  the  time  of 
execution,  understood  to  be  delivered,  and  under  such  circum- 
stances that  the  grantee  is  entitled  to  immediate  delivery ;  or  2. 
Where  it  is  delivered  to  a  stranger  for  the  benefit  of  the  grantee, 
and  his  assent  is  shown,  or  may  be  presumed. 

NOTE. — California:  The  above  eight  paragraphs  are  from  the  Civil 
Code;  the  first  is  section  1052  and  the  last  1059.  Alaska,  Codes,  pt.  5, 
e.  11,  sees.  369-3S0;  Arizona,  a  C,  pars.  721-760;  Colorado,  Mill's  Stats., 


174  New  Book  of  Forms. 

Bccs.  456-601;  Idaho,  C.  C,  sees.  2419-2460;  Montana,  C.  C,  sees.  1511- 
1827;  Nevada,  Comp.  Laws,  sees.  2407-2731;  New  Mexico,  Comp.  Laws, 
sees.  2931-3967;  North  Dakota,  C.  C,  sees.  3434-3598;  Oregon,  Codes  and 
Statutes,  sees.  5342-5527;  South  Dakota,  C.  C.  sees.  915-947;  Utah,  Eev. 
Stats.,  sees.  1968-2498;  Washington,  Ballinger's  Codes,  sees.  4520-4530; 
Wyoming,  Kev.  Stats.,  sees.  2728-2753. 

Transfer  of  Real  Estate. — In  California  real  property,  other 
than  an  estate  at  will  or  for  a  term  not  exceeding  one  year,  can 
be  transferred  only  by  operation  of  law,  or  by  an  instrument  in 
writing,  subscribed  by  the  party  disposing  of  the  same,  or  by  his 
agent  authorized  by  writing. 

No.  235.— "Grant,"  Form  of. 

A  grant  of  an  estate  in  real  property  may  be  made  in  sub- 
stance as  follows : 

"I,  A.  B.,  grant  to  C.  D.  all  that  real  property  situated  in  (in- 
sert name  of  county)  county,  state  of  California,  bounded  [or 
described]  as  follows:  [Here  insert  description,  or  if  the  land 
sought  to  be  conveyed  has  a  descriptive  name,  it  may  be  described 
by  the  name,  as,  for  instance,  'The  Norris  Ranch']. 
""Witness  my  hand  this    [insert  day]    day  of    [insert  month], 

18—. 

*'A.  B." 

NOTE.— California,  C.  C,  sec.   1092. 

"Grant,"  Meaning  of. — From  the  use  of  the  word  "grant" 
in  any  conveyance  by  which  an  estate  of  inheritance  or  fee  sim- 
ple is  to  be  passed,  the  following  covenants,  and  none  other,  on 
the  part  of  the  grantor  for  himself  and  his  heirs  to  the  grantee, 
his  heirs,  and  assigns,  are  implied,  unless  restrained  by  express 
terms  contained  in  such  conveyance:  i.  That  previous  to  the 
time  of  the  execution  of  such  conveyance,  the  grantor  has  not 
conveyed  the  same  estate,  or  any  right,  title,  or  interest  therein, 
to  any  person  other  than  the  grantee;  2.  That  such  estate  is  at 
the  time  of  the  execution  of  such  conveyance  free  from  encum- 
brances done,  made,  or  suffered  by  the  grantor,  or  any  person 
claiming  under  him.  Such  covenants  may  be  sued  upon  in  the 
same  rnanner  as  if  they  had  been  expressly  inserted  in  the  con- 
veyance. 

Encumbrance,  What  is. — ^The  term  "encumbrances"  in- 
cludes taxes,  assessments  and  all  liens  upon  real  property. 

NOTE.— California,  C.  C,  sees.  1091,  1092,  1113,  1114.  Idaho,  C.  C, 
sections  2416,  2417,  are  the  same  as  California,  sections  1113,  1114,  and 
section  2400  is  the  same  as  in  California,  section  1091.  Montana.  C.  C, 
sees.  1500,  1501,  1519,  1520,  the  same  as  in  California.  North  Dakota, 
C.  C,  sees.  3531,  3535-3539,  3540,  the  same  as  in  California.  South  Da- 
kota, C.  C,  sees.  938-940,  942,  943,  the  same  as  in  California. 


Deeds — Grants — Conveyances.  175 

"Deed,"  Meaning  of. — In  a  large  sense  "deed"  inclndes  "mort- 
gage." If  the  wording  of  an  instrument  shows  that  ft  was  used  in  a 
limited  sense  the  instrument  will  not  be  held  to  be  a  mortgage:  Hillman 
V.  Howard,  44  Cal.  101. 

Execution  of. — Words  used  as  follows:  "I  give  ample  power  to  D.  J.  N. 
to  use  or  dispose  of  my  lot,  and  in  testimony  I  give  the  present  power  at 
Y.  B.,  sixth  day  of  October,  1846,"  is  not  a  conveyance:  Stafford  v. 
Lick,  10  Cal.  12. 

Description  of  Property  Conveyed  in  Deeds. — The  quantity  stated  is 
not  controlling:  Tappendorff  v.  Downing,  76  Cal.  169,  18  Pac.  247.  It 
yields  to  description  by  metes  and  bounds  or  by  a  name  or  number: 
Startey  v.  Green,  12  Cal.  148;  Hall  v.  Shotwell,  66  Cal.  379,  5  Pac.  683. 
A  deed  of  an  undivided  two-thirds  of  two  leagues  of  land,  part  of  a 
grant,  is  good  as  far  as  it  goes:  Spect  v.  Gregg,  51  Cal.  198.  See,  also, 
MeCullough  V.  Olds,  108  Cal.  529,  41  Pac.  420.  A  map  must  give  way  to 
number  in  case  of  conflict:  Masterson  v.  Munro,  105  Cal.  431,  45  Am. 
St.  Eep.  57,  38  Pac.  1106. 

Description  Other  than  by  Quantity. — "Lot  No.  1  in  subdivision  of 
tract  of  land  lying  on  new  county  road  and  known  as  Foley's  tract,  the 
map  of  which  is  duly  recorded  in  the  recorder's  office,"  is  not  a  sufficient 
description:  Caldwell  v.  Center,  30  Cal.  539,  89  Am.  Dec.  131.  A  deed 
by  C.  to  B.,  reciting  C.  as  owner,  of  the  Canada  de  Eaeniundo,  and  de- 
scribing the  land  conveyed  as  "the  land  between  the  creek  of  the  Presa, 
north  of  the  creek  of  the  Alembrique,  without  embracing  my  said 
ranch,"  is  not  void  for  want  of  description,  nor  because  of  the  words, 
"without  embracing  my  said  ranch":  Havens  v.  Dale,  18  Cal.  359,  cited 
93  Cal.  670,  29  Pac.  256.  A  description  which  calls  for  a  lot  of  land 
one  hundred  varas  square,  bounded  on  three  sides  by  well-known  streets 
upon  the  plat  of  a  city  laid  out,  surveyed  and  platted,  and  on  the  other 
by  unsurveyed  lands,"  is  good:  Garwood  v.  Hastings,  38  Cal.  216. 

"All  my  interest  in  a  parcel  of  land  in  the  town  of  San  Francisco, 
being  block  No.  9,  the  same  on  which  I  now  reside.  The  part  thus 
donated  commences  at  the  northeast  corner  of  said  block,  running  twenty- 
five  varas  west  from  said  corner;  thence  back  one  hundred  varas," 
was  held  to  be  good  as  to  a  strip  off  the  easterly  side  of  the  block  twenty- 
five  varas  wide  and  a  hundred  varas  deep:  De  Levillain  v.  Evans,  39 
Cal.  120. 

A  deed  described  the  land  as  "bounded  on  the  north  the  land  of 
Joseph  C.  Palmer."  Held,  to  be  a  sufficient  identification  of  the  north- 
ern boundary:   McKeon  v.  Millard,  47   Cal.  581. 

A  deed  is  not  uncertain  if  from  the  description  the  boundaries  can 
easily  be  found:  Meyers  v.  Farquharson,  46  Cal.  190. 

A  deed  for  "one-half  of  my  lot"  in  the  place  described  is  good  if 
grantor  owned  but  one  lot  in  the  place:  Lick  v.  O'Donnell,  3  Cal.  59,  58 
Am.  Dec.  383  If  a  description  is  so  uncertain  that  it  will  fit  several 
parcels  of  land,  it  is  void:  People  v.  Khnnpke,  41  Cal.  203.  Deed  de- 
scribing "three  fractions  of  lot  7,  L  and  K,  Fourth  and  Fifth  streets, 
Sacramento  City,"  is  void:  Tryon  v.  Huntoon,  67  Cal.  325,  7  Pac.  741, 

Description  by  Name. — A  well-known  name  of  land  is  a  sufficient 
description:  Haley  v.  Amestoy,  44  Cal.  132.  See,  also,  Vejar  v.  Mound 
City  Land  Assn.,  97  Cal.  659,  32  Pac.  713.  Name  or  number  is  good  if 
certainty  can  be  obtained  by  evidence  of  what  was  intended:  Stanley  v. 
Green,  12  Cal.  148;  MeCullough  v.  Olds,  108  Cal.  529,  41  Pac.  420;  ci'ted, 
14  Nev.  63;  16  Nev.  237;  3  New  Mex.  24.  The  same  rule  applies  to 
grants  as  to  what  is  conveyed  by  a  deed,  and  to  what  is  excepted  from 
its  operation:  Truett  v.  Adams,  66  Cal.  218,  5  Pac.  96.  The  same  rule 
was  applied  in  97  Cal.  659,  32  Pac.  713. 


1/6  New  Book  of  Forms. 

Description  by  Reference  to  Deed,  Survey  or  Map. — A  deed  referring 
to  another  deed  for  a  description  becomes  part  of  the  other  the  same 
as  if  copied  in  the  referring  deed:  Vance  v.  Fore,  24  Cal.  435;  cited,  5 
Utah,  635,  19  Pac.  198.  See  30  Cal.  539,  89  Am.  Dec.  131,  to  same  point. 
If  such  deed  referred  to  is  falsely  stated  to  be  recorded  in  the  county 
•where  the  property  lies,  such  falsehood  does  not  vitiate  the  reference: 
Saunders  v.  Schmaelzle,  49  Cal.  59.  A  deed  conveying  a  United  States 
subdivision  was  described  only  by  the  name  of  the  township  and  the 
subdivision  of  the  township.  It  was  held  to  be  a  good  description  be- 
cause the  survey  and  monuments  made  and  erected  by  the  United  States 
were  considered  as  referred  to  by  reference  in  the  deed  to  the  United 
States  subdivision:  Powers  v.  Jackson,  5  Cal.  429.  The  same  principles 
apply  to  a  tract  of  land  marked  on  a  map  of  it  if  the  boundaries  and 
natural  objects  on  the  surface  of  the  land  are  delineated:  Chapman  v. 
Polack,  70  CaL  487,  11  Pac.  764.  Similar  cases  are  Fratt  v.  Tombs,  48 
Cal.  28;  Perry  v.  Eichards,  52  Cal.  672;  Pettigrew  v.  Dobbelaar,  63  Cal. 
396.  No  other  deed  or  map  or  instrument  will  be  admitted  in  evidence 
except  the  one  referred  to:  Caldwell  v.  Center,  30  Cal.  539,  89  Am.  Dee. 
131. 

Parol  evidence  is  admissible  to  identify  the  map  referred  to:  Redd 
V.  Murry,  95  Cal.  48,  24  Pac.  841,  30  Pac.  132.  The  d(  seription  of  an 
instrument  or  thing  referred  to  must  be  such  that  the  land  conveyed 
can  be  identified.  It  is  a  maxim  of  law  that  that  is  certain  which  can 
be  made  certain.  It  is  also  a  rule  of  law  that  evidence  outside  of  a 
deed  is  admissible  to  explain  its  calls  so  as  to  give  it  effect:  Thompson 
V.  Southern  California  Motor  Road  Co.,  82  Cal.  497,  23  Pac.  130.  As  to 
descriptions  by  reference  to  numbers  in  maps,  see  McCullough  v.  Olds, 
108  Cal.  529,  41  Pac.  420,  and  by  blocks  and  maps,  Mastersou  v.  Munro, 
105  Cal.  431,  45  Am.  St.  Rep.  57,  38  Pac.  1106;  and  for  legal  subdivisions 
of  sections,  Eshleman  v.  Malter,  101  Cal.  233,  35  Pac.  860;  in  each  case 
the  description  was  considered  good;  but  in  the  description  by  monu- 
ments, distances,  conflicting  lines,  by  the  omission  of  a  line  that  would 
mend  matters  if  it  had  been  inserted,  it  was  intimated  that  if  the  num- 
ber of  acres  in  the  tract  had  been  stated,  an  essential  part  of  the  de- 
scription would  not  have  been  omitted:  Hostctter  v,  Los  Angeles  Termi- 
nal R."Co.,  108  Cal.  38,  41  Pac.  330. 

Conflicting  Descriptions. — Of  two  goods  a  grantee  takes  the  best — 
that  is  to  say:  If  a  deed  contains  two  descriptions  and  both  are  of  equal 
authority,  the  one  most  favorable  to  the  grantee  will  be  adopted:  Vance 
V.  Fore,  24  CaL  435.  If  the  descriptions  are  repugnant,  effect  is  given 
to  the  one  which  is  in  accord  with  the  intention  of  the  parties:  Wade 
V.  Deery,  50  Cal.  376.  A  false  description  is  surplusage  a,s  against  a 
good  one:  Reed  v.  Spencer,  27  Cal.  57;  cited,  13  Nev.  524.  If  one  de- 
scription describes  land  the  grantor  owned,  and  the  other  does  not,  effect 
is  given  to  the  former:  Piper  v.  True,  36  Cal.  606.  If  a  correct  descrip- 
tion by  name  and  an  erroneous  description  by  metes  and  bounds  are  in 
the  same  grant,  the  name  governs:  Haley  v.  Armstrong,  44  Cal.  132; 
cited,  13  Nev,  524;  Murray  v.  Tulare  Irr.  Co.,  120  Cal.  311,  49  Pac.  563, 
52  Pac.  586.  If  there  is  a  conflict  between  a  map  and  a  survey,  the  sur- 
vey controls:  Cleaveland  v.  Choate,  77  Cal.  73,  18  Pac.  875;  Whiting  v. 
Gardner,  80  CaL  78,  22  Pac.  71;  Sanchez  v.  Grace  M.  E.  Church,  114  Cal. 
295  46  Pac.  2.  A  map  prevails  over  degrees  of  latitude:  Mayo  v.  Ma- 
zeaux,  38  Cal.  442.  In  a  conflict  between  a  description  by  courses  and 
boundaries  and  a  description  by  survey,  the  survey  governs:  Hudson  v. 
Griven,  50  Cal.  450. 

Quitclaim  Deed. — "All   my  right   and   interest"    (Frey  v.    Clifford,   44 
CaL    335;    cited,    3   N.    Mex.    238);    "demise,    release    and    quitclaim"; 


Deeds — Gr^vnts — Conveyances.  177 

"hath,  and  hcroby  does  release,  and  forever  quitclaim"  ("WTioley  v. 
Cavanatij,'h,  88  Cal.  132,  25  Pac.  1112);  pass  whatever  title  the  {^antor 
has  at  the  date  of  the  execution  of  the  deed:  Carpenter  v.  Williamson, 
25  Cal.  154;  Rego  v.  Van  Pelt,  65  Cal.  254,  3  Pac.  867;  cited  79  Cal.  4.36, 
21  Pac.  47;  Morrison  v.  Wilson,  30  Cal.  344.  The  words,  "waive  and 
renounce,"  when  inserted  in  a  document  which  does  not  purport  to  be  a 
conveyance,  do  not  convey  title:  Davis  v.  McGrew,  82  Cal.  135,  23  Pac. 
41. 

A  quitclaim  deed  from  a  man  to  his  wife  passes  his  interest  in  the 
comnumity  property.  It  conveys  the  fee  simple  if  the  grantor  had  it: 
Spaulding  v.  Bradley,  79  Cal.  449,  22  Pac.  47.  "I  deed  all  my  right, 
title  and  interost  in  Sacramento  City,  Upper  California,  consisting  of 
town  lots  and  buildings  thereupon,"  passes  all  the  grantor's  interest  in 
his  lots  in  Sacramento  City:  Frey  v.  CliflFord,  44  Cal.  335;  cited,  3  N. 
Mex.  247;  16  Nev.  238.  If  an  applicant  has  merely  prepared  his  applica- 
tions for  state  lands,  his  quitclaim  deed  passes  no  interest  in  the  land 
described  in  his  proposed  application,  even  if  the  habendum  clause  says 
that  it  shall:  Anderson  v.  Yoakum,  94  Cal.  227,  28  Am.  St.  Rep.  121,  29 
Pac.  500;  but  if,  when  a  holder  of  certificate  of  purchase  on  which  a 
payment  has  been  made  makes  a  quitclaim  deed  of  his  interest,  and  sub- 
sequentlv  obtains  a  patent,  his  title  passes  to  his  grantee:  Wholey  v. 
Cavanaugh,  88  Cal.  132,  25  Pac.  1112;  Crane  v.  Salmon,  41  Cal.  63.  In 
a  case  C.  had  no  title:  made  a  quitclaim  to  D.,  and  then  acquired  title 
and  granted  it  to  P.  Held,  that  P.  took  under  his  deed:  Cadez  v.  IMajors, 
33  Cal.  288.  Even  if  the  "quitclaim"  contains  a  covenant  of  warranty, 
the  title  does  not  pass:  Quivy  v.  Baker,  37  Cal.  465.  And  it  would  not 
pass  if  it  had  been  a  grant  deed:  See  the  cases  cited  under  head  "Grant 
Deeds."  If  a  deed  uses  words  of  grant,  bargain  and  sale,  it  will  be 
construed  to  "mean  quitclaim"  if  a  clause  in  it  says  that  as  to  title 
it  is  "only  a  quitclaim":  Moirison  v.  Wilson,  30  Cal.  344;  cited,  1  Mont. 
708.  A  quitclaim  deed  does  not  carry  the  title  subsequently  acquired 
by  the  grantor  under  a  patent:  Z^fcDonald  v.  Edmonds,  44  Cal.  328.  A 
grantee  under  a  quitclaim  may  deny  that  he  received  any  estate  by 
that  deed:  San  Francisco  v.  Lawton,  IS  Cal.  465,  79  Am.  Dec.  187.  A 
recorded  quitclaim  deed  received  in  good  faith  and  for  a  valuable  con- 
Eideration  takes  precedence  of  an  unrecorded  grant,  bargain  and  sale 
deed:  Graff  v.  Middleton,  43  Cal.  341;  cited,  44  Cal.  343:  Frev  v.  Clifford, 
44  Cal.  335;  cited,  72  Cal.  564,  14  Pac.  27;  19  Or.  347,  24  Pac.  515. 

Mistakes  and  Ambiguities — Evidence. — In  cases  of  latent  ambiguity, 
testimonv  as  to  the  facts  and  circumstances  under  which  the  deed  was 
executed' will  be  heard:  Piper  v.  True,  36  Cal.  606;  cited,  13  Nev.  524; 
Brandon  v.  Leddy,  67  Cal.  43,  47  Pac.  33.  A  description  of  the  follow- 
ing class  is  void  on  account  of  patent  ambiguity:  "The  following  de- 
scribed property,  situate,  lying  and  being  in  the  city  of  Sacramento, 
state  of  California,  consisting  of  two  thousand  two  hundred  town  lots, 
be  the  same  more  or  less,  said  lots  being  boundf^d  according  to  the  origi- 
nal plat  or  plan  of  said  city":  Mesick  v.  Sundfrland.  6  Cnl.  297;  cited, 
2  ]\ront.  424;  8  Mont.  304,  20  Pac.  807.  If  a  description  is  false  in  some 
particulars,  and  if  a  suffuMont  true  description  remnins,  the  deed  is  good: 
Irving  V.  Cunningham,  66  Cal.  15;  Reamer  v.  Nesmith,  34  Cal.  624; 
cited,  10  Mont.  292,  25  Pac.  1056.  If  the  land  is  described  by  the  wrong 
divisions  of  a  survey  of  a  section,  the  deed  passes  the  title  if  the  Innd 
can  be  identified  by  monuments  actually  fixed  upon  the  ground:  Helm 
V.  Wilson,  76  Cal.  476,  IS  Pac.  604.  If  a  description  is  defective,  the 
defect  mav  be  cured  bv  evidence:  Fudickar  v.  East  Riverside  Irr.  Dist., 
109  Cal.  29.  41  Pac.  1024. 

If  a  description   in   a   deed   is  known  by  the  parties   to  be   incorrect, 
but  was  put  in  for  the  convenience  of  the  grantee  for  lack  of  a  true  de- 
New  Forms — 12 


178  New  Book  of  Forms. 

Bcription,  and  it  was  verbally  understood  that  possession  was  only  to 
be  given  as  to  the  lands  which  the  grantor  owned  in  fee  within  the  calls 
of  the  deed,  the  grantee  may  have  the  deed  refonned  to  describe  the 
lands  actually  sold,  and  the  fact  that  the  deed  and  agreement  were  not 
made  under  mistake  as  to  their  terms  and  meaning:  Eva  v.  McMahon, 
77  Cal.  467,  19  Pac.  872.  Parol  evidence  is  admissible  to  show  the  loca- 
tion of  a  tract  described  by  name:  Colton  Land  etc.  Co.  v.  Swartz,  99 
Cal.  278,  33  Pac.  878.  A  conflict  between  a  survey  and  map  may  be 
shown:  O'Farrell  v.  Hasney,  51  Cal.  125,  An  official  map  may  be  shown 
to  be  inaccurate:  Cleaveland  v.  Choate,  77  Cal.  73,  18  Pac.  875.  The 
conduct  of  the  parties  after  making  a  deed,, to  determine  ambiguity,  may 
be  shown:  Vejar  v.  Mound  City  Land  etc.  Assn.,  97  Cal.  659,  32  Pac. 
713;  Piper  v.  True,  36  Cal.  606.  "When  the  terms  of  a  conveyance  are 
ambiguous  or  insufficient,  the  subsequent  acts  of  the  parties  may  be  re- 
sorted to  to  ascertain  their  intention:  Truett  v.  Adams,  66  Cal.  218,  5 
Pac.  96;  cited,  11  Mont.  324,  28  Pac.  315,  24  Or.  97,  32  Pac.  1027. 

Capability  to  Grant. — A  deed  is  invalid  if  either  party  is  incapable 
of  holding:  Sunol  v.  Hepburn,  1  Cal.  254;  Phelan  v.  San  Francisco,  6 
Cal.  531;  Hunter  v.  Walson,  12  Cal.  363;  Barr  v.  Schroder,  32  Cal.  609. 

Estate  to  Commence  in  Future. — Such  estates  are  void:  Hawes  v. 
Stebbins,  49  Cal.  369.  In  1869  plaintiff  sold  to  defendant  a  tract  of  land. 
The  deed  was  upon  the  express  condition  that  plaintiff,  grantor,  should 
retain  the  use  and  control  as  long  as  he  lived.  The  grantor  brought 
this  action  to  quiet  title.  Upon  appeal  the  court  assumed  that  the  deed 
was  inoperative  (not  void)  as  a  common-law  conveyance.  It  held  that 
a  freehold  to  commence  in  future  could  be  created  by  bargain  and  sale 
under  the  statute  of  uses,  and  that  if  that  statute  was  part  of  our  law 
prior  to  the  codes,  the  deed  was  valid,  and  that  if  that  statute  was 
not  in  force  when  the  deed  was  executed,  the  deed  would  be  enforced 
in  a  court  of  equity  as  it  would  have  been  done  before  the  statute.  It 
held  that  in  either  case  a  court  of  equity  had  authority  to  determine  the 
rights  of  the  parties  by  ordering  the  plaintiff  to  convey  to  his  grantee 
the  fee  of  the  property,  and  whpn  that  was  done  the  defendant  was 
ordered  to  convey  to  the  plaintiff  a  life  estate  in  the  same  property: 
Chandler  v.  Chandler,  55  Cal.  267;  citing  Hawes  v.  Stebbins,  above  re- 
ferred to,  which  was  a  very  kind  thing  to  do  instead  of  overruling  it. 

Signature  to  Deed. — There  is  no  form  for  signing  a  deed.  If  a  writ- 
ing shows  that  the  maker  has  adopted  it  as  his  own,  and  intended 
to  be  bound  by  it,  it  is  a  deed  if  the  subject  of  the  instrument  is 
land:  Ingalsby  v.  Juan,  12  Cal.  564,  565;  Blaisdell  v.  Leach,  101  Cal. 
405,  40  Am.  St.  Eep.  65,  35  Pac.  1019.  In  California  a  seal  to  a  deed  or 
conveyance  is  unnecessary.  There  the  words,  "grant,"  "deed,"  "con- 
vej-ance"  or  "quitclaim"  in  an  instrument  intended  to  pass  title  to 
land  have  the  same  general  meaning.  If  the  intention  is  to  pass  a  title 
which  the  3)arties  know  the  grantor  owns,  and  is  unencumbered,  either 
word  will  pass  the  title.  If  the  grantor  has  no  title  and  uses  the  word 
"grant"  and  afterward  acquires  title,  the  title  so  acquired  passes  to  his 
grantee  without  further  writings.  If  a  grantor  uses  the  words  "quit- 
claim" and  afterward  acquires  title,  it  does  not  pass  to  the  purchaser. 
Lawyers  say,  "Subsequent  title  acquired  by  a  grantee,"  or  the  person 
who  executes  a  deed  or  conveyance,  "feeds  the  grant,"  but  the  word 
"quitclaim"  only  passes  the  title  owned  by  him  at  the  date  when  the 
instrument  was  executed.  There  are  other  differences,  but  the  foregoing 
are  sufficient  for  the  purposes  of  this  note.  Since  the  decision  in  the 
Ingalsby  and  other  similar  cases,  a  grant,  deed  or  conveyance  of  land  is 
good  in  California  without  a  seal;  but  so  close  does  Ihe  coat  of  old  Cali- 
fornia lawyers  and  conveyancers  stick  to  their  backs,  that  a  conveyance 


Deeds — Grants — Conveyances.  179 

or  mortp^agc  of  land  without  a  seal  is  extremely  unusual.  Tf  a  makrr  of 
a  form  book  omits  seals  from  his  California  forms  that  wore  imlispfns- 
ablc  in  the  time  of  Noah,  his  work  is  liable  to  be  questioned,  and  there- 
fore seals  appear  on  many  forms  for  use  in  those  places  where  they  are 
unnecessary.  Under  civil  law  any  instrument  containing  the  names  of 
the  parties,  a  description  of  the  land  sold,  the  date  of  transfer  and  tho 
price   paid,  passed  the  title:   Stanley  v.  Green,   12   Cal.   148. 

Grantee's  Name  must  be  Inserted. — A  deed  with  grantee's  name 
omitted  is  not  a  deed.  If  his  name  is  inserted  in  his  absence  it  does  not 
become  a  deed  unless  the  person  who  inserted  it  had  written  authority 
to  do  it:  Upton  v.  Archer,  41  Cal.  85,  10  Am.  Rep.  266.  In  Wunderlin 
V.  Cadogan.  .50  Cal.  613,  it  was  held  that  a  deed  without  a  grantee's  name 
is  void.     See.  also.  Arguello  v.  Bours,  67  Cal.  447,  8  Pac.  49. 

Two  or  More  Grantors. — If  there  are  two  grantors,  and  one  signs 
as  the  other's  attorney  in  fact,  he  must  sign  once  for  himself  and  once 
for  the  other  grantor:  Meagher  v,  Thompson,  49  Cal.  189. 

Signature  by  Another. — If  a  grantor's  signature  is  made  by  another 
at  his  request  and  in  his  presence  such  deed  is  valid:  Jansen  v.  MeCahill, 
22  Cal.  563,  S3  Am.  Dec.  84. 

All  Grantors  not  Signing.— If  any  of  the  grantors  named  in  the  in- 
strument do  not  sign,  the  deed  is  binding  on  the  interests  of  those 
who  sign:  Colton  v.  Soavey,  22  Cal.  496. 

Conveyance  by  Partner. — Such  conveyance  is  good  even  if  the  name 
of  each  partner  is  inserted  in  the  caption  as  the  first  parties:  Coyton  v. 
Walker,  10  Cal.  450. 

Grantor  Unable  to  Write. — If  a  man  is  unable  to  sign  his  name,  is 
of  sound  mind,  and  if  a  conveyance  is  read  to  him  before  it  was  signed, 
and  if  he  then  requests  a  bystander  to  guide  his  hand  so  he  could  make 
his  signature,  the  deed  is  good:  Harris  v.  Harris,  59  Cal.  620.  See 
Gordon  v.  City  of  San  Diego,  108  Cal.  264,  41  Pac.  301. 

Identity  of  the  Parties. — If  the  owner  of  land  conveys  it  in  his  own 
or  in  any  other  name  as  grantor,  as  between  grantor  and  grantee,  the 
deed  will  pass  the  title:  Fallon  v.  Kehoe,  38  Cal.  44.  In  Wilson  v. 
White,  84  Cal.  239,  24  Pac.  114,  the  above  case  was  cited  and  approvedj 
holding  that  a  conveyance  to  or  hy  a  fictitious  name  carries  the  title. 

Signing  Wrong  Name. — If  a  grantor's  true  name  is  in  the  body  of 
deed  and  he  acknowledges  it  by  that  name  but  signs  any  other  name 
to  it,  his  title  passes:   Middleton  v.  Findla,  25  Cal.  76. 

Identity  of  Grantor  or  Grantee. — If  ,lohn  Smith  grants  to  John  Smith 
a  trust  of  land,  in  an  action  to  quiet  title  to  the  land  by  John  Smith 
plaintiff,  against  John  Smith,  defendant,  the  identity  of  the  grantor 
with  the  defendant  will  be  presumed  from  the  identity  of  names:  Ward 
V.  Dougherty,  75  Cal.  241,  7  Am.  St.  Rep.  151,  17  Pac.  193.  At  law  a 
presumption  is  only  temporary,  and  if  anj'  John  Smith  was  in  possession 
under  a  deed,  his  op]>onent  might  prove  that  he  was  not  the  John  Smith 
grantee,  or  if  he  claimed  possession  and  could  not  obtain  it,  after  de- 
mand he  would  be  called  upon  to  prove  that  he  was  John  Smith,  grantee. 
In  such  case  conveyances  ought  to  contain  words  of  identification  such 
as  "John  Smith,  of  A.  B.,  merchant,"  etc.  But  even  that  precaution 
does  not  appear  to  prevent  comparison,  because  it  has  been  said  that  if 
the  name  of  the  grantor  is  identical  with  that  of  the  grantee  in  a  former 
deed,  even  if  both  deeds  recite  the  residence  of  the  person  to  be  at  dif- 
ferent places:   Carlton  v.  Townsend,  28  Cal  219, 

In  all  such  cases  identity  of  person  is  a  question  of  fact.  It  has  been 
held  that  where  an  objection  was  made  that  no  proof  had  been  olfered 
that  William  Johnson  of  a  deed  was  the  William  Johnson  of  the  United 


iSo  New  Book  of  Forms. 

states  patent,  it  would  be  presumed  that  the  persons  were  the  same 
nnless  some  circumstances  were  shown  to  create  doubts  upon  the  point: 
Mott  V.  Smith,  16  Cal.  533. 

Consideration. — A  consideration  need  not  be  expressed  in  a  deed: 
Goad  V.  Moulton,  67  Cal.  536,  8  Pac.  63.  Nevertheless  when  a  considera- 
tion is  expressed,  courts  refer  to  it  and  seem  to  consider  that  the  consid- 
eration expressed  is  prima  facie  true.  In  California  a  written  instrument 
is  presumed  to  be  founded  upon  sufficient  consideration:  See  Sahuon  v. 
Wilson,  41  Cal.  595;  Carty  v.  Connolly,  91  Cal.  15,  27  Pac.  599;  Field  v. 
Shorb,  99  Cal.  661,  34  Pac.  504.  A  good  consideration  as  used  in  section 
1605  of  the  Civil  Code  is  a  valuable  consideration:  Aden  v.  City  of  Val- 
lejo,  139  Cal.  165,  72  Pac.  905. 

Real  Consideration. — The  parties  may  show  what  the  real  considera- 
tion was:  Irvine  v.  McKean,  23  Cal.  134.  Either  party  may  show  what 
the  real  consideration  was  as  between  themselves.  And  this  is  so  in 
states  where  a  seal  is  necessary,  provided  the  consideration  is  of  the  same 
species  as  that  mentioned  in  the  deed,  and  the  amount  of  the  considera- 
tion may  be  contradicted:  Rhine  v.  Ellen,  36  Cal.  362.  If  no  considera- 
tion is  expressed,  it  may  be  proved  by  parol:  Merle  v.  Mathews,  26  Cal. 
455.  But  if  consideration  is  expressed,  the  grantor  is  estopped  from 
claiming  that  there  was  no  consideration;  but  if  fraud  is  charged,  the 
consideration  expressed  is  open  to  explanation  and  variation  by  parol 
evidence:  Coles  v.  Soulsby,  21  Cal.  47.  If  the  grantor  bring  action  to 
recover  a  consideration,  it  may  also  be  shown  that  the  expressed  con- 
sideration was  not  to  be  paid  in  any  event:  Rhine  v.  Ellen,  36  Cal.  362. 
Gift  Deeds. — A  mother's  deed  of  land  to  her  child  upon  the  verbal 
consideration  of  a  promise  of  support,  care  and  attention  during  life 
is  void  because,  being  %  erbal,  it  cannot  be  enforced  against  her  child, 
and  may  be  canceled  at  the  suit  of  the  mother:  Grimmer  v.  Carlton,  93 
Cal.  189. 

Eecital  of  Payment. — Acknowledgment  of  payment  in  a  deed  may  be 
contradicted:  Rhine  v.  Ellen,  36  Cal.  362.  It  is  not  evidence  of  pay- 
ment as  against  a  grantee  under  a  prior  deed:  Colton  v.  Seavy,  22  Cal. 
496  Always  the  real  character  of  the  consideration  may  be  shown: 
Byers  v.  Locke,  93  Cal.  496,  27  Am.  St.  Rep.  212,  29  Pac.  119.  It  is  pre- 
sumed that  the  consideration  was  paid  by  the  grantee;  and  to  overcome 
that  presumption  the  evidence  must  be  clear:  Anthony  v.  Chapman,  65 
Cal.  73  2  Pac.  889.  The  same  rule  applies  to  deeds  of  gift  even  whon 
both  love  and  affection  and  money  was  the  expressed  consideration:  Peck 
V.  Vandenburo',  30  Cal.  11.  The  recital  of  a  consideration  as  paid  by  the 
purchaser  is  not  evidence  of  the  payment  against  strangers  to  the  deed: 
or  against  those  claiming  prior  to  the  deed,  or  claiming  adversely.  It  is 
ovidenee  only  against  those  claiming  against  the  grantor  by  subsequent 
conveyance:   Gallard  v.  Lackman,   26   Cal.   70. 

Delivery  of  Deed. — A  deed  does  not  take  effect  until  it  is  delivered 
with  the  assent  of  the  grantor:  Gould  v.  Wise,  97  Cal.  532,  32  Pac.  576, 
33  Pac.  323.  Title  will  not  pass  by  an  undelivered  deed:  Barr  v. 
Schroder  32  Cal.  609.  To  the  same  point.  Finch  v.  Bunch,  30  Cal.  208. 
See  also'  65  Cal.  327,  4  Pac.  106,  67  Cal.  547,  56  Am.  Rep.  726,  4  Pac.  473, 
8  Pac.  46.  If,  after  delivery,  the  grantor  takes  possession  of  the  deed 
and  destroys  it  the  grantee's  title  is  not  affected:  Kinneff  v.  Coalfield, 
140  Cal.  34,  73  Pac.  803. 

A  deed  takes  effect  when  the  maker  delivers  or  causes  it  to  be  de- 
livered to  the  grantee  with  intention  to  have  it  immediately  take  effect: 
Harris  v.  Harris,  59  Cal.  620.  When  the  grantor  devests  himself  of  all 
power  over  it,  the  deed  is  delivered:  Denis  v.  Velati,  96  Cal.  223,  31  Pae. 
1.     Delivery  is  always  a  question  of  fact:  Hastings  v.  Vaugh,  5  Cal.  315; 


Deeds — Grants — Conveyances.  i8i 

eitcd,  67  Cal.  553,  562,  56  Am.  Rep.  726,  4  Pac.  473,  8  Pac.  46;  Dc-an  v. 
Parker,  88  Cal.  283,  26  Pac.  91.  Intent  to  deliver  depends  upon  all  the 
circumstances  surrounding  the  execution:  Hibberd  v.  Smith,  67  Cal.  547, 
56  Am.  Rep.  726,  4  Pac.  473,  8  Pac.  46.  Where  a  deed  was  delivered 
to  a  grantee  with  intent  to  invest  title  in  him,  and  the  maker  requested 
him  not  to  record  it  until  after  his  death,  is  an  immaterial  fact.  The 
title  immediately  vested  in  the  grantee:  Dimmick  v.  Dimmick,  95  Cal. 
323,  30  Pac.  547. 

To  be  valid,  the  grantor  must  part  with  the  deed  for  all  time:  Kenney 
V.  Parks,  125  Cal.  146,  57  Pac.  772.  After  such  delivery  the  deed  may 
come  to  the  possession  of  the  grantor  without  invalidating  it:  Reed  v. 
Smith,  125  Cal.  491,  58  Pac.  139.  As  to  sham  deliveries,  see  "Deeds." 
See  Stephenson  v.  Duel,  125  Cal.  656,  58  Pac.  258.  A  deed  may  be  valid 
if  delivered  after  grantor's  death  if  sufliciently  referred  to  in  the 
grantor's  will  and  in  it  devised  to  the  grantee:  Estate  of  Young,  123 
Cal.  337,  55  Pac.  1011.  Delivery  to  one  of  the  two  grantees  is  delivery  to 
both:  Eshleman  v.  Henrietta  Vineyard  Co.,  102  Cal.  199.  36  Pac.  579. 
Delivery  depends  upon  intention  of  both  grantor  and  grantee:  Whitney 
V.  American  Ins.  Co.,  127  Cal.  464,  59  Pac.  897. 

Under  section  1055  of  the  Civil  Code,  a  deed  after  execution  is  pre- 
sumed to  have  been  delivered  at  its  date:  Ward  v.  Dougherty,  75  Cal. 
240,  7  Am.  St.  Rep.  151,  17  Pac.  193;  McGorry  v.  Robinson,  135  Cal.  3.12, 
67  Pac.  279;  Lewis  v.  Burns,  122  Cal.  358,  55  Pac.  132.  See  Poulsen  v. 
Stanley,  122  Cal.  655,  68  Am.  St.  Rep.  73,  55  Pac.  605.  An  authenticated 
copy  of  a  recorded  deed  is  presumed  that  the  original  was  delivered: 
Davis  V.  Pacific  Improvement  Co.,  118  Cal.  45,  50  Pac.  7.  But  such  pre- 
sumption is  not  conclusive:  Treadwell  v.  Reynolds,  47  Cal.  171;  and  a 
party  claiming  under  adverse  title  may  prove  the  delivery:  Sill  v.  Reese, 
47  Cal.  294.  A  deed  delivered  to  a  grantee  to  take  effect  upon  a  con- 
tingency takes  effect  when  the  contingency  happens:  Howard  v.  Throck- 
morton, 59  Cal.  79.  Delivery  to  a  grantee  does  not  always  pass  title. 
If  it  is  shown  that  it  was  delivered  for  another  purpose,  title  does  not 
pass.  Intention  governs:  Denis  v.  Velati,  96  Cal.  223,  31  Pac.  1.  Pos- 
session of  a  deed  is  presumption  of  delivery:  Black  v.  Sharkey,  104  Cal. 
279,  37  Pac.  939. 

.\  deed  delivered  by  grantor  to  a  person  with  instructions  to  hold  it 
for  grantor's  children,  and  not  record  it  until  he  died,  and  then  deliver 
it  to  them,  if  the  deed  contains  no  reservations  in  favor  of  the  o-rantor, 
the  title  immediately  vests  in  the  grantees,  but  the  grantor  holds  a  life 
estate  in  the  subject  of  the  grant:  Bury  v.  Young,  98  Cal.  446,  35  Am. 
St.  Rep.  186,  33  Pac.  338. 

Fraud  and  Deceit  Affecting  Delivery. — A  grantee  absconds  (makes  off) 
with  a  deed.  No  delivery:  Haskell  v.  Doty,  78  Cal.  424,  21  Pac.  10.  H. 
obtains  possession  clandestinely.  No  delivery:  Gould  v.  Wise.  97  Cal. 
532,  32  Pac.  576,  33  Pac.  323.'  A  relative  of  grantee  who  held  a  deed 
conditionally  which  he  obtained  by  false  representations,  had  it  recorded 
but  his  fraud  availed  him  nothing:  Klosc  v.  Hildebrand,  88  Cal.  473.  26 
Pac.  352.  See  Denis  v.  Velari,  96  Cal.  223,  31  Pac.  1.  Also  Fisli  v 
Benson,  71  Cal.  428,  12  Pac.  454. 

If  a  man  is  ignoran*^  of  what  he  conveys  by  his  deed,  but  knows  that 
he  was  "doing  something"  with  his  estate,  but  was  told  that  what  he 
was  doing  was  a  mere  form,  such  a  deed  is  not  void;  but  if  all  the  facta 
warrant,  it  may  be  voidable:  Blaisdell  v.  Leach,  101  Cal.  405,  40  Am. 
St.  Rep.  65,  35  Pac.  1019. 

A  drunken  man  executed  a  deed.  He  thought  it  was  a  letter.  He  was 
kept  in  ignorance  that  he  had  executed  the  deed  until  less  than  three 
years  before  the  conimenceniont  of  action  to  annul  the  doi'd.  Those 
facts  sustained  his  complaint:   Loftis  v.  Marshall,  134  Cal.  394,  86    Am. 


1 82  New  Book  of  Forms. 

St.  Rep.  286,  66  Pnc.  571.     See  Kenny  v.  Parks,  137  Cal.  527,  70  Pac.  556, 
as  to  the  time  in  which  action  must  be  commenced. 

Evidence  of  Delivery. — There  is  no  presumption  of  delivery  arising 
from  signing  and  acknowledgment  of  a  deed:  Boyd  v.  Slaybach,  63  Cal. 
493;  cited,  75  Cal.  243,  7  Am.  St.  Rep.  151,  17  Pac.  193.  In  Bensly  v. 
Atwell,  12  Cal.  231,  it  was  said  that  signing  and  acknowledgment  Is  some 
evidence  of  delivery.  In  another  case,  plaintiff's  attorney  produced  a 
deed  to  him  in  court  and  offered  it  in  evidence.  Held,  that  such  offer 
was  sufficient  evidence  that  it  was  delivered  to  him  and  that  he  ac- 
cepted it:  Branson  v.  Caruthers,  49  Cal.  374;  cited,  75  Cal.  246,  17  Pac 
1.  See  Still  v.  Rees,  47  Cal.  294.  Recording  is  not  evidence  of  de- 
liverv  unless  the  deed  comes  from  the  hands  of  the  grantor  or  his 
grantee:  Barr  v.  Sehroeder,  32  Cal.  609;  cited,  75  Cal.  243,  7  Am.  St.  Rep. 
151,  17  Pac.  193.  A  deed  found  amoung  the  papers  of  a  deceased  person 
is  some  evidence  of  its  delivery  to  him:  Kidder  v.  Stevens,  60  Cal.  414. 

In  Gordon  v.  City  of  San  Diego,  108  Cal.  279,  41  Pac.  301,  it  is  said 
that  an  executed  grant  is  presumed  to  have  been  delivered  at  its  date:  C. 
C.,  sec.  1055.  The  rule  in  some  other  states  that  a  deed  is  not  presumed 
to  have  been  delivered  until  it  is  acknowledged  is  not  applicable  in  Cali- 
fornia. 

A  man  executed  a  deed  in  the  house  cf  gi-antee  and  left  it  on  grantee's 
table,  and  when  grantor  had  gone  grantee  put  it  away.  Those  facts 
establish  delivery,  aside  from  the  presumption  arising  from  possession 
of  the  grant:  McLennan  v.  McDonnell,  78  Cal.  273,  20  Pac.  566.  Decla- 
rations of  grantor  made  months  after  the  delivery  of  his  deed  are  not 
evidence  of  his  intentions  in  delivering  it:  Bury  v.  Young,  98  Cal.  446, 
35  Am.  St.  Rep.  186,  33  Pac.  338.  If  delivery  is  disputed,  evidence  of 
the  party  with  whom  the  grantor  left  the  deed  as  to  grantor's  conversa- 
tions with  him  as  to  his  intentions  in  relation  to  the  delivery  is  admis- 
sible: Dean  v.  Parker,  88  Cal.  283,  26  Pac.  91. 

Cancellation — Redelivery. — Destruction  of  a  deed  after  delivery  does 
not  revest  title,  even  if  destroyed  for  the  express  purpose  of  restoring 
title  to  the  grantor:  Crammer  v.  Porter,  41  Cal.  462;  Bowman  v.  Cud- 
worth,  31  Cal.  148.  See  Kelley  v.  Wilson,  33  Cal.  690;  Lawton  v.  Gor- 
dan,  37  Cal.  202.  Also,  Kearsing  v.  Kilian,  18  Cal.  491;  Ahrens  v.  Alder, 
33  Cal.  608. 

Delivery  in  Escrow. — A  deed  is  said  to  be  in  escrow  when  it  is  deliv- 
ered to  a  third  person  to  keep  and  deliver  to  the  grantee  upon  certain 
conditions  to  be  by  him  performed,  which  is  usually  a  sum  of  money  to 
be  paid  the  grantor.  It  must  be  complete  in  all  its  parts  before  it  is 
in  a  form  to  be  delivered  in  escrow.  It  must  no  longer  be  under  the 
grantor's  controL  It  only  lacks  delivery  to  give  it  vitality:  Fitch  v. 
Bunch,  30  Cal.  208;  Wittenbrock  v.  Cass,  110  Cal.  1,  42  Pac.  300;  Con- 
nor v.  Handley,  72  Cal.  133;  cited,  77  Cal.  282,  19  Pac.  499;  Miller  v. 
Sears,  91  Cal.  282,  25  Am.  St.  Rep.  176,  27  Pac.  589;  Beem  v.  McCusick, 
10  Cal.  538.  It  must  be  delivered  to  a  person  not  a  party  to  it:  Mowry 
V.  Heney,  86  CaL  471,  25  Pac.  17.  The  grantor  must  have  intended  to 
part  with  the  possession  for  all  time:  Kenney  v.  Parks,  125  CaJ.  146,  57 
Pac.  772,  S.  C,  137  Cal.  527,  70  Pac.  556. 

A  deed  in  escrow  carries  all  the  title  the  grantor  had  at  the  date 
of  its  execution,  and  is  good  against  an  intervening  grantee  who  takes 
his  deed  with  knowledge  of  the  escrow.  The  grantor  cannot  revoke 
it  after  its  delivery  in  escrow:  McDonald  v.  Hoff,  77  Cal.  279,  19 
Pac.  499;  Bradbury  v.  Davenport,  114  Cal.  593,  55  Am.  St.  Rep.  92,  46 
Pac.  1062;  Marr  v.  Rhodes,  131  Cal.  267,  63  Pac.  364.  At  any  time  be- 
fore delivery  in  escrow  it  may  be  revoked  under  the  same  condition 
applicable  to  other  contracts;  Fitch  v.  Bunch,  30  CaL  208. 


Deeds — Grants — Conveyances.  183 

Delivery  at  Moment  of  Death. — A  deed  in  escrow  to  be  delivered  at 
the  moment  of  the  grantor's  death  is  valid  if  so  delivered:  Schunr  v. 
Bodenback,  133  Cal.  85,  65  Pac.  298.  Sec,  also,  Huntley  v.  San  Fran- 
cisco Sav.  Union,  130  Cal.  46,  62  Pac.  255,  when  the  deed  was  ' '  left 
with"  a  notary. 

Deed  to  Support  Grantor  in  Escrow. — A  deed  was  put  in  escrow  under 
a  contract  that  tho  grantee  would  support  grantor  during  life,  and  that 
was  the  only  consideration  for  the  deed.  If  such  condition  is  broken 
the  grantor  has  an  action  to  compel  redelivery  to  him  of  the  deed:  How- 
lin  V.  Castro,   136  Cal.  605,  69  Pac.  432. 

Acceptance. — There  is  no  delivery  if  there  is  no  acceptance,  express 
or  implied:  Bank  of  Healdsburg  v.  Bailhaiche,  65  Cal.  327,  4  Pac.  106. 
Acceptance  may  be  shown  by  acts  as  well  as  words:  Kidder  v.  Stevens, 
60  Cal.  414.  Acceptance  is  always  a  question  of  fact:  Bensley  v.  Atwill, 
12  Cal.  231.  A  deed  beneficial  to  a  grantee  delivered  to  a  third  person 
without  the  grantee's  knowledge  or  authorization  or  subsequent  assent 
is  subject  to  a  judgment  lien  on  the  grantor's  property  that  attached 
to  the  premises  described  in  the  deed  after  its  delivery  to  the  third  per- 
son and  before  the  assent  to  the  deed  by  the  grantee :"Hibberd  v.  Smith, 
67  Cal.  547,  56  Am.  Eep.  726,  4  Pac.  473,  8  Pac.  46. 

Eights  of  Grantee  Under  Void  Deed.— If  a  deed  is,  upon  its  face,  void, 
a  claimant  under  it  is  charged  with  knowledge  of  its  invalidity.  He 
does  not  even  obtain  color  of  title:  Sunol  v.  Hepburn,  1  Cal.  254.  In 
later  cases  it  has  been  held  that  as  to  "color  of  title,"  Sunol  v.  Hep- 
bum  went  too  far:  See  77  CaL  496,  20  Pac.  56. 

Confirmation  of  Void  Deed.— A  void  deed  may  be  confirmed  by  a  sub- 
sequent valid  deed:  Barr  v.  Schroder,  32  CaL  609. 

Mistake  or  Fraud  in  Deed.— Mistake  in  stating  residence  of  grantee 
docs  not  affect  her  rights:  Stewart  v.  Sutherland,  93  Cal.  270,  28  Pac. 
947.  Parol  evidence  is  admissible  to  show  a  mistake  or  fraud  in  a  deed: 
Wagenblast  v.  Washburn,  12  Cal.  208.  If  the  grantor  intended  to  use 
the  words  he  used  in  his  deed,  his  mistake  is  as  to  the  legal  effect  of  his 
grant  and  he  is  bound  by  his  words:  Burt  v.  Wilson,  28  Cal.  632,  87  Am. 
Dec.  142.  If  a  grantor  executes  two  deeds  to  the  same  grantee,' and  the 
second  shows  that  he  conveyed  more  than  he  intended,  and  the  grantee 
accepts  the  second  deed,  and  claims  under  it,  a  court  will  direct  him  to 
reconvcy  the  surplus  to  the  grantor:  Sepulveda  v.  Sepulveda,  77  Cal.  605 
20  Pac.  145.  Eecital  of  a  consideration  does  not  relieve  grantor  from 
fraud:  Prison  v.  Brison,  75  CaL  525,  7  Am.  St.  Eep.  189,  17  Pac.  6S9. 

Fraud  Established.— If  it  is  established  that  a  deed  was  procured  by 
fraud  the  judgment  should  be  that  the  deed  be  canceled.  It  should  not 
direct  the  grantee  to  recover:  Upton  v.  Archer,  41  Cal.  85,  10  Am.  Eep. 
266;  but  if  a  grantee  would  voluntarily  convey  his  deed,  it  would  not 
be  void. 

General  Rules  of  Construction.- All  courts  when  called  upon  will  con- 
strue deeds,  and  they  may  or  may  not,  on  a  question  of  law,  follow  the 
i-uling  of  the  court  below:  Mulford  v.  Le  Franc,  26  Cal.  88-  Moody  v. 
Palmer,  50  Cal.  31.  >  /      • 

Intent  Governs.— Deeds  are  construed  with  reference  to  the  intention 
of  the  parties,  and  the  character,  etc.,  of  the  subject  matter  of  the 
contract.  For  the  purpose  of  construction  the  entire  instrument  is  al- 
ways considered:  Martin  v.  Lloyd.  94  Cal.  195.  29  Pac.  491-  Stockton 
v.  Weber,  98  Cal.  433,  33  Pac.  332;  Brannan  v.  Mesick,  10  Cal.  95.  See 
also,  for  an  extended  example,  Faivre  v.  Dalev,  93  Cal  664  "9  Pac  256  • 
Baker  v.  Clark,  128  Cal.  ISl,  60  Pac.  677.  The  intention'  i^  not  to  be 
whoUy   determined   by   the    granting   clause;    the   habendum   clause   may 


184  New  Book  of  Forms. 

prevail:  Barnett  v.  Barnctt,  104  Cal.  298,  34  Pae.  1049.  A  fee  simple 
title  is  presumed  to  be  conveyed  unless  it  appears  from  the  deed  that 
the  grantor  intended  to  grant  a  lesser  estate:  Pellissier  v.  Corker,  103 
Cal.  516,  37  Pac.  465. 

It  is  sometimes  difficult  to  understand  the  meaning  of  general  expres- 
sions sometimes  found  in  cases  of  the  same  general  nature  in  the  same 
courts.  In  Solomon  v.  Wilson,  41  Cal.  59o,  it  is  said:  "Deeds  [all 
deeds]  are  construed  most  strongly  against  the  grantor."  In  Hager  v. 
Spcct,  52  Cal.  579,  it  is  said:  "A  deed  [any  deed  J  will  be  construed  most 
strongly  against  the  grantor."  In  Dodge  v.  Walley,  22  Cal.  224,  83 
Am.  Dec.  61,  it  is  said:  "Deeds  [all  deeiis]  are  always  to  be  construed 
most  strongly  against  the  grantor  when  there  is  any  uncertainty  or  am- 
biguity in  their  terms."  In  Piper  v.  True,  36  Cal.  606,  it  is  said:  "All 
doubts  as  to  the  meaning  of  them  must  be  solved  in  favor  of  the 
grantee."  And  in  Sears  v.  Aekerman,  138  Cal.  583,  72  Pac.  349,  it  is 
said:  "Reservations  and  exceptions  in  grants  [all  grants]  are  to  be  in- 
terpreted in  favor  of  the  grantee. ' ' 

Deed  Sustained— Construction  of. — If  a  deed  contains  matter  which  is 
repugnant  to  its  general  intention,  the  repugnant  matter  is  rejected. 
If  possible,  the  intention  of  the  parties  is  ascertained  regardless  of 
technical  rules:  Wilcoxson  v.  Sprague,  51  Cal.  640;  Faivre  v.  Daley,  93 
Cal.  664,  29  Pac.  256.  The  rule  that  public  grants  to  private  persons  are 
to  be  construed  strongly  in  favor  of  the  grantor  really  means  that  the 
courts  will  uphold  the  grant  only  to  the  extent  of  its  evident  intentions: 
Cuiien  v.  Sprigg,  83  Cal.  56,  23  Pac.  222;  Hostetter  v.  Los  Angeles 
Terminal  E.  Co.,  108  Cal.  38,  41  Pac.  330. 

WOiTds  in  Deed  Construed. — The  same  as  in  aU  instruments,  a  deed 
will  be  construed  according  to  the  surrounding  facts  and  general  wording 
of  it.  Matters  of  convenience  will  not  overrule  express  words:  In  re 
Yanee,  100  Cal.  425,  34  Pac.  1087;  Fratt  v.  Woodward,  32  Cal.  219,  91 
Am.  Dec.  573;  Morrison  v.  Wilson,  30  Cal.  344.  Little  weight  is  attached 
to  technical  definitions:  Painter  v.  Pasadena  Land  etc.  Co.,  91  Cal. 
74,  27  Pac.  539;  but  if  it  is  apparent  that  the  grantor  used  technical 
words  to  express  an  idea  different  from  its  technical  meaning,  the  in- 
tended meaning  will  prevail:  Central  Pacific  R.  R.  Co.  v.  Beal,  47  Cal. 
151.  The  word  "heirs"  does  not  carry  title  to  the  grantee's  heirs: 
Hunter  v.  Watson,  12  Cal.  363,  73  Am,  Dec.  543.  A  deed  of  grant, 
bargain  and  sale,  omitting  all  words  of  inheritance  (such  as  his  heirs, 
administrators,  executors  and  assigns),  conveys  a  fee  simple  title:  Mont- 
gomery v.  Sturdivant,  41  Cal.  290.  See  Painter  v.  Pasadena  Land  etc. 
Co.,  91  Cal.  74,  27  Pac.  539.  The  word  "grant"  conveys  the  estate  de- 
scribed, whatever  may  be  its  class:  San  Francisco  R.  R.  Co.  v.  Oakland, 
.43  Cal.  502;  but  its  meaning  may  be  limited,  and,  if  it  is  limited,  the 
courts  will  carry  out  the  expressed  intention  of  the  parties.  A  fee 
simple  title  is  presumed  to  pass  upon  a  grant  of  land,  but  if  it  does  not 
appear  from  the  grant  that  a  lesser  estate  was  intended  to  pass,  a  fee 
simple  title  passes:  Pellissier  v.  Corker,  103  Cal.  516,  37  Pae.  465;  Faivre 
V,  Daley,  93  Cal.  664,  29  Pac.  256.  The  words  "grant,  bargain,  sell 
and  convey"  operate  as  a  release,  and  also  transfer  any  interest  which 
the  grantor  had  in  the  land  at  the  date  of  the  deed:  Muller  v.  Boggs, 
25  Cal.  175. 

Situation  of  Parties — Circumstances. — When  considering  a  doubtful 
description,  a  court  will  put  itself  in  the  position  of  the  contracting 
parties  to  each  other,  and  then  consider  all  the  circumstances  of  the 
transaction  between  them:  Tmett  v.  Adams,  66  Cal.  218,  5  Pac.  96;  and 
when  the  court  has  placed  itself  in  that  position,  the  intent  of  the  parties 
is  not  apparent  from  the  deed;  it  will  resort  to  the  rules  of  construction 


Deeds — Grants — Conveyances.  i?5 

which  an  eonrts  apply  to  {^vc  pfFoct  to  those  things  abont  which  the  law 
presamcs  the  pajlies  are  least  liable  to  mistake.  If  the  intention  cannot 
then  be  discovered,  arbitrary  rules  may  be  applied:  Kimball  v.  Semple, 
25  Cal.  440. 

Evidence  of  the  circumstances  under  which  a  deed  waa  executed  is  ad- 
missible: Kco  V.  Coleman,  47  Cal.  47;  Mulford  v.  Le  Franc,  26  Cal.  8S; 
Stanley  v.  Green,  12  Cal.  148;  cited,  8  Colo.  ."^99.  8  Pac.  .569;  but  if  the  land 
can  be  identified  by  a  construction  of  the  deed,  evidence  aliunde  will  not 
be  resorted  to:  Pulliam  v.  Bennett,  55  Cal.  368.  If  there  is  doubt  about 
the  meaning  of  expressions  used,  parol  evidence  may  be  adniittid  to 
explain:  Reamer  v.  Nesmith,  34  Cal.  624;  but  operative  words  cannot  be 
contradicted  by  such  testimony:  Rhine  v.  Ellen,  36  Cal.  362.  If  sev- 
eral parts  of  a  grant  are  irreconcilable,  the  former  part  prevails,  is  de- 
clared to  be  the  California  rule  in  section  1070  of  the  Civil  Code,  but  if 
there  is  only  one  part  to  a  deed,  that  rule  does  not  apply  if  the  deed  as 
a  whole  is  complete:  Pellissier  v.  Corker,  103  Cal.  516,  37  Pac.  465. 

Judicial  Notice. — If  a  deed  fails  to  name  the  meridian  from  which  the 
township  and  range  were  numbered,  described  as  being  in  Santa  Cruz 
county,  the  court  will  take  judicial  notice  that  Mount  Diablo  meridian 
is  the  onlv  meridian  for  townships  and  ranges  in  that  county:  Harring- 
ton v.  Goldsmith,  136  Cal.  108,  68  Pac.  594. 

Habendum  Clause. — It  limits  and  defines  the  estate  granted:  Mont- 
gomery V.  Sturdivant,  41  Cal.  290.  If  the  habendum  clause  is  irrecon- 
cilable with  the  premises,  the  premises  prevail:  Faivre  v.  Daley,  93 
Cal.  664,  29  Pac.  256.  A  quitclaim  deed  described  the  land  with  words 
explaining  to  what  use  it  was  to  be  put,  which  made  an  instrument  so 
uncertain  that  reference  was  had  to  the  habendum  clause  where  the 
words  "for  the  uses  and  purposes  aforesaid"  governed:  Baker  v.  Clark, 
128  Cal.  181,  60  Pac.  677. 

When  the  habendum  clause  of  a  deed  of  bargain  and  sale  to  A.  had 
these  words:  "For  the  use  of  a  Chinese  church  or  place  of  religious 
worship  and  moral  instruction  under  his  [A 's]  direction  and  in  con- 
formity to  the  rules  of  the  See  Yup  Company,"  held  that  the  legal  title 
is  in  A,  and  that  the  deed  does  not  raise  any  use  or  trust  in  favor  of 
the  See  Yup  Company,  and  that  the  company  has  no  equitable  title  or 
interest  in  the  property  by  force  of  the  deed:  Eldridge  v.  See  Yup 
Co.,  17  Cal.  44;  cited,  8  Nev.  78.  The  ground  for  this  conclusion  was 
the  fact  that  the  limitation  in  the  habendum  clause  as  to  the  manner  in 
which  the  property  was  to  be  used  was  inconsistent  with  the  words, 
"grant,  bargain,  sell  and  convey  to  A."  In  Faivre  v.  Daley,  93  Cal. 
671,  29  Pac.  256,  it  is  said  in  referring  to  the  case  last  above  cited:  "If 
we  hold  that  the  clause  [habendum]  quoted  above  is  repugnant  to  the 
grant,  and  therefore  void,  we  defeat  the  manifest  intention  of  all  the 
parties,  and  this  can  be  done  only  by  the  application  of  subtle  and  unsub- 
stantial definitions  and  technical  and  arbitrary  rules";  and  then  cite 
Eldridge  v.  See  Yup  Co..  17  Cal.  51.  which  means  that  17  Cal.  51  is 
"subtle  and  unsubstantial   law,"  because  not   overruled. 

Interest,  What  Passes. — If  the  grantor  has  only  a  contract  to  purchase 
an  interest  in  land,  his  interest  passes:  Brock  v.'Pearson,  87  Cal.  581,  25 
Pac.  963.  If  a  clause  states  that  the  interest  conveyed  is  onl_v  that  ac- 
quired by  the  grantor  from  B.  and  the  grantor  has  not  acquired  any  in- 
terest from  B,  but  owns  an  interest  acquired  from  C,  the  interest  he  ac- 
quired from  C  passes:  Cited.  78  Cal.  277,  20  Pac.  566.  See  Barnctt  v. 
Bamett,  103  Cal.  516,  37  Pac.  465,  as  to  life  estates. 

A  deed  to  husband  and  wife  for  their  joint  lives,  and  to  the  survivor 
during  life,  and  remainder  to  the  issue  and  heirs  of  their  two  bodies, 
and  the  heirs  of  such  issue  forever,  vest  a  life  estate  in  the  grantees  and 


i86  New  Book  of  Forms. 

a  full  estate  in  their  children:  Montgomery  v.  Sturdivant,  41  CaL  290. 
A  deed  of  bargain  and  sale  by  a  husband  to  his  wife  and  son  by  name 
and  to  such  other  heirs  as  his  wife  may  have  during  marriage,  and  at 
her  death  to  the  children  of  the  man-iage,  their  heirs  and  assigns,  vests 
the  estate  in  the  wife  and  son:  Brenham  v.  Davidson,  51  Cal.  352. 

If  a  beginning  point  in  a  deed  is  a  visible  monument,  and  the  descrip- 
tive calls  are  definite,  a  subsequent  survey  changing  the  location  of  a 
larger  tract  within  which  it  is  said  in  the  deed  the  land  conveyed  was 
located  does  not  impair  the  grantee's  rights:  Wilbur  v.  Washburn,  47 
Cal.  67.  A  conveyance  of  an  undivided  half  interest  in  a  tract  of  land 
in  which  the  grantor  has  only  an  undivided  quarter  passes  the  whole  of 
such  quarter  interest:  Jordan  v.  Fay,  98  Cal.  264,  33  Pac.  95.  A  deed  of 
"one-half  of  my  lot"  makes  the  grantee  tenant  in  common  with  the 
grantor:  Lick  v.  O'Donnell,  3  Cal.  59,  58  Am.  Dec.  383.  If  an  owner 
grants  an  undivided  one-third  of  a  rancho,  and  retains  adverse  possession 
until  the  title  of  his  grantee  is  extinguished  and  then  conveys  to  another 
party  the  interest  in  said  lands,  "heretofore  conveyed  to  said  grantee, 
and  all  the  undivided  third  part"  of  the  whole  tract,  the  latter  convey- 
ance vests  in  the  grantee,  not  the  particular  third  first  conveyed,  but  an 
undivided  third  without  distinguishing  which  third:  Hartman  v.  Beed, 
50  Cal.  485. 

After-acquired  Title. — A  grant,  bargain  and  sale  deed  carries  to  the 
grantee  the  title  vested  in  the  grantor  at  the  date  of  the  deed,  and  any 
title  acquired  by  him  thereafter:  Dal  ton  v.  Hamilton,  50  Cal.  422.  This 
is  also  a  law  of  California:  C.  C,  sec.  1106.  See  Green  v.  Clark,  31  Cal. 
591.  Title  acquired  by  prescription  passes  to  prior  grantee:  Merrill  v. 
Clark,  103  Cal.  367,  37  Pac.  238.  In  California  it  is  said  that  a  grant 
of  school  lands  which  did  not  convey  the  title  in  fee  simple  made 
prior  to  the  code  did  not  carry  the  title  the  grantor  subsequently  ac- 
quired from  the  state:  People  v.  Blake,  84  Cal.  611,  22  Pac.  1142, 
24  Pac.  313.  This  rule  is  not  defeated  by  taking  the  after-acquired 
title  in  the  name  of  a  third  person  who  is  a  mere  blind.  A  court 
of  equity  wiU  attend  to  that:  Quivey  v.  Baker,  37  CaL  465.  See, 
also,  Ayres  v.  Palmer,  57  Cal.  309.  If  a  conveyance  of  grantor's 
right,  title  and  interest  contains  a  covenant  of  warranty,  and  if  the 
grantor  had  no  title,  but  afterward  acquires  it,  the  title  does  not  pass: 
Barrett  v.  Birge,  50  Cal.  655;  Kimball  v.  Semple,  25  Cal.  440;  cited,  1 
Mont.  708.     See,  also,  Gee  v.  Moore,  14  Cal.  472. 

Appurtenances. — Anything  is  appurtenant  to  land  when  it  is  by  right 
used  with  it:  Cal.  C.  C,  sec.  662.  This  section  does  not  refer  to  the 
grantor's  title  to  the  appurtenance,  but  refers  to  the  rightful  use  by 
which  it  has  become  an  adjunct  to  the  land:  Crocker  v.  Benton,  93  Cal. 
365,  28  Pac.  953.  A  grant  carries  with  it  without  mention  what- 
ever is  appurtenant  to  it  or  necessary  to  its  enjoyment:  Cave  v.  Crafts, 
53  Cal.  135;  cited  8  Mont.  231,  19  Pac.  571.  See  Sparks  v.  Hess,'  15  Cal! 
186;  Farmer  v.  Ukiah  Water  Co.,  56  Cal.  11;  Cross  v.  Kitts,  69 
Cal.  217,  58  Am.  Rep.  558,  10  Pac.  409.  The  grant  of  a  messuage 
(old  French,  meaning  house  and  offices  for  use  of  household)  or  a 
Tue&siuige  with  its  appurtenances,  will  pass  the  dweUing-house  and  ad- 
joining buildings,  and  also  its  curtilage  (also  old  French,  meaning  a 
yard,  courtyard,  or  piece  of  ground  lying  near  to  a  dwelling-house* 
but  it  must  be  included  within  the  same  fence),  and  also  its  orchard  and 
garden,  within  the  close:  Sparks  v.  Hess,  15  Cal.  186.  As  to  mining 
claims,  the  one  who  asserts  that  a  ditch  and  its  water  rights  are  appur- 
tenant to  it  is  cast  to  prove  it:  Quirk  v.  Falk,  47  Cal.  453.  See  Coon- 
radt  V.  Hill^  79  CaL  587,  21  Pac.  1099;  McShane  v.  Carter,  80  CaL  310, 
22  Pac.  178. 


Deeds — Grants — Conveyances.  187 

Water  Eight — Appurtenance. — A  deed  expressly  j^ranting  a  water  right 
as  appurtenant  to  land  implies  a  covenant  against  a  previous  conveyance 
of  it,  and  if  when  the  negotiations  for  the  sale  of  the  land  were  begun 
by  the  grantee,  and  the  water  right  was  conveyed  to  a  third  person 
prior  to  the  deed,  the  grantee  has  an  action  for  breach  of  covenant: 
Lyles  v.  Perrin.  134  Cal.  417,  66  Pac.  472.  See  Los  Angeles  Terminal 
Land  Co.  v.  Muir.  136  Cal.  36,  68  Pac.  308. 

Exceptions — Reservations. — "Exception"  and  "reservation"  may 
mean  the  same  thing:  Painter  v.  Pasadena  Land  etc.  Co.,  91  Cal.  74, 
27  Pac.  539.  If  a  deed  says  it  conveys  "all  the  right,  title  and  in- 
terest" of  the  grantor,  and  adds  the  words  "being  a  one-half  undi- 
vided interest,"  the  entire  interest  of  the  grantor  in  the  tract  passes: 
McLennan  v.  McDonnell,  78  Cal.  273,  20  Pac.  566.  This  follows  the 
rule  that  when  two  parts  of  a  grant  are  irreconcilable  the  first  part 
prevails:  Martin  v.  Lloyd,  94  Cal.  19.5,  29  Pac.  491.  If  the  part  ex- 
cepted is  described  by  courses  and  distances,  it  may  or  may  not  be 
repugnant:  See  Painter  v.  Pasadena  Land  etc.  Co.,  91  Cal.  74,  29 
Pac.  539.  If  it  is  doubtful  whether  there  was  an  intention  in  wording 
a  deed  to  make  a  reservation,  the  grantor  will  be  given  the  benefit  of 
the  doubt:  Muller  v.  Boggs,  25  Cal.  175.  See  Upham  v.  Hasking,  62  Cal. 
251;  Grennan  v.  McGregor,  78  Cal.  258,  20  Pac.  559.  A  reservation  in  a 
grant  of  the  right  to  oils,  etc.,  in  it,  and  the  right  to  erect  machinery, 
sink  wells,  tunnel,  and  work  on  it,  has  the  right  to  go  on  the  reservatien 
and  tunnel  and  dig.  but  he  has  no  right  to  use  the  land  to  store  what 
ho  finds:  Dietz  v.  Mission  Transfer  Co.,  95  Cal.  92,  30  Pac.  380.  See, 
also.  Painter  v.  Pasadena  Land  etc.  Co.,  91  Cal.  74,  29  Pac.  539.  A  deed 
"with  the  exception  of  the  timber  which  I  reserve  for  my  own  use," 
leaves  the  fee  simple  in  the  grantor:  Sears  v.  Ackerman,  138  Cal.  5S3, 
72  Pac  171. 

Conditions  in  Deeds. — An  estate  upon  condition  cannot  be  created  in  a 
grant  except  when  the  terms  of  the  instrument  will  admit  of  no  other 
reasonable  interpretation:  Cullen  v.  Sprigg,  83  Cal.  56.  23  Pac.  222.  It 
is  not  necessary  to  expressly  state  that  the  title  shall  vest  only  upon 
certain  conditions.  The  word  "provided,"  if  frequently  used,  expresses 
conditions:  Stockton  v.  Weber,  98  Cal.  433,  33  Pac.  332. 

An  absolute  deed  when  delivered  carries  the  title  free  from  conditions, 
and  cannot  be  varied  by  parol  of  the  grantor's  intention  that  it  was 
not  to  take  effect  before  the  grantor's  death,  and  that  that  fact  was 
known  to  the  grantee:  Mowry  v.  Heney,  86  Cal.  471,  25  Pac.  17.  If  a 
grant  deed  contains  a  condition  that  the  grantee  shall  not  convey  it 
without  the  grantor's  consent,  the  condition  is  in  restraint  of  alienation 
and  void:  Murray  v.  Green,  64  Cal.  363. 

Condition  Precedent. — A  condition  that  a  payment  should  be  made  aa 
stipulated,  and  when  made  the  deed  shall  take  effect,  is  a  condition  pre- 
cedent, and  the  instrument  does  not  take  effect  until  the  condition  is 
performed :  Talbert  v.  Hopper,  42  Cal.  397 ;  Mesick  v.  Sunderland.  6  Onl. 
297.  See  Cay  ton  v.  Walker,  10  Cal.  450;  Hihn  v.  Peck,  30  Cal.  2S0. 
Failure  to  comply  with  a  condition  voids  the  deed:  Stockton  v.  Weber, 
98  Cal.  433,  33  Pac.  332;  Brannan  v.  Mesick,  10  Cal.  95.  If  the  grantor 
prevents  the  grantee  from  performing  the  conditions  of  a  grant,  the 
grantee  is  excused  for  nonperformance:   Haughton  v.  Steel,  58  Cal.  421. 

Condition  Subsequent,  and  Forfeiture. — A  deed  contained  a  condition 
that  the  grantee  should  maintain  a  lumber-yard  on  the  land  during  five 
vears,  but  the  grantee  maintained  the  yard  for  less  than  one  year. 
The  grantor  entered  upon  the  land  and  demanded  a  reconveyance,  which 
was  refused  by  the  grantee,  except  upon  condition  that  he  would  re- 
pay to  him  the  purchase  price.     Held,   that  the   grantor  had  an  action 


1 88  New  Book  of  Forms, 

to  compel  a  reconveyance  of  the  land  for  a  breach  of  the  condition, 
and  to  remove  the  clond  caused  by  the  record  of  his  deed  to  the 
grantee:  Parsons  v.  Smilie,  97  Cal.  647,  32  Pac.  702.  See,  also,  Liebrand 
V.  Otto,  56  Cal.  2-42.  A  condition  to  make  certain  improvements  if  vio- 
lated will  avoid  the  deed:  Quatman  v.  McCray,  128  Cal.  285,  6C  Pac. 
855.  A  deed  on  condition  subsequent  passes  title  to  the  grantee:  Spect 
V.  Gregg,  51  Cal.  198.  A  deed  containing  a  condition  subsequent  which 
is  unlawful:  Cayton  v.  "Walker,  10  Cal.  450;  and  a  grantor  who  places 
the  legal  title  in  another  upon  an  unlawful  condition  subsequent  cannot 
recover  it  by  suit  at  law  or  in  equity:  Patterson  v.  Donner,  48  Cal.  369. 
If  the  condition  is  lawful,  but  thero  is  no  time  limit  for  its  performance, 
and  the  condition  becomes  impossible,  the  grant  is  absolute:  Vanderslice 
V.  Hanks,  3  Cal.  27.     See  Stockton  v.  Weber,  98  Cal.  433,  33  Pac.  332. 

A  forfeiture  of  real  estate  cannot  be  had  for  nonperformance  of  con- 
ditions precedent  or  subsequent  unless  there  are  two  contracting  parties 
who  have  at  the  same  time,  or  successively,  an  interest  in  the  estate 
upon  which  the  condition  is  reserved,  for  the  nonperformance  of  which 
the  forfeiture  is  claimed:  Wiseman  v.  McNulty,  25  Cal.  230.  Forfeit- 
ures are  not  favored,  and  instruments  containing  them  are  construed 
strictly  against  a  forfeiture,  or  as  liberal  as  possible  to  prevent  it: 
People  ex  rel.  Davidson  v.  Perrv,  79  Cal.  105,  21  Pac.  423;  Clnry  v. 
Folger,  84  Cal.  316,  18  Am.  St.  Rep.  187,  24  Pac.  280;  Belcher  Con. 
G.  M.  Co.  V.  Deferrari,  62  Cal.  160.  Where  a  forfeiture  and  a  right  to 
enforce  it  are  given  by  statute,  and  a  procedure  prescribed  by  which 
it  may  be  enforced,  no  other  remedy  can  be  applied:  Reed  v.  Omnibus  R. 
R.  Co.,  33  Cal.  212.  Questions  as  to  the  performance  contained  in  a 
grant  can  only  be  made  by  the  grantor:  Buckelew  v.  Estell,  5  Cal. 
108-  Smith  v.  Brannan,  13  Cal.  107.  If  the  condition  is  to  use  the  land 
for  a  certain  purpose,  it  is  not  broken  by  an  irregular  use  for  the  de- 
scribed purpose:  Behlow  v.  Southern  Pacific  R.  R.  Co.,  130  Cal.  16,  62  Pac. 
S95. 

Covenant  A.<?ainst  Encumbrances. — Such  covenant  embraces  taxes 
levied  for  the  fiscal  year,  succeeding  the  date  of  the  grant,  which  were 
a  lien  upon  the  land  as  of  the  first  Monday  of  March  preceding  the  date 
of  the  grant.  In  such  case  a  succeeding  grantee  who  has  paid  the 
taxes  has  no  action  against  the  first  grantor  upon  his  covenant  imnlied 
from  his  deed  of  grant,  because  there  is  no  personal  liability  of  the 
owner  of  land  to  pay  taxes  levied  on  it:  McPike  v.  Heaton,  131  Cal. 
109,  82  Am.  St.  Rep.  335,  63  Pac.  179.  The  covenant  against  encum- 
brances found  in  section  1113  of  the  California  Civil  Code  refers  only 
to  encumbrances  suffered  by  the  grantor  to  become  a  lien  upon  the 
granted  land.  That  section  imposes  a  personal  obligation  upon  the  gran- 
tor or  grantors,  and  their  obligation  under  it  is  joint  and  several: 
Holzheier  v.  Hayes,  133  Cal.  456,  65  Pac.  968. 

Defeasance — Agreement  to  Keconvey. — A  deed  and  a  defeasance  are  to 
be  read  as  one  instrument:  Patterson  v.  Donner,  48  Cal.  369.  A  dcfeas- 
a  ce  may  be  executed  at  or  after  the  time  the  deed  was  executed,  pro- 
vided it  was  executed  according  to  an  understanding  had  when  the  deed 
was  executed:  Sears  v.  Dixon,  33  Cal.  326.  If  the  understanding  was  not 
in  writing,  but  some  time  after  the  understanding  was  put  in  writing, 
the  deed  and  written  agreement  will  be  construed  together:  Adams  v. 
Lambard,  80  Cal.  426,  22  Pac.  180.  A  grantee  (for  a  valuable  considera- 
tion and  without  notice)  of  a  grantee  who  executed  a  defeasance  when 
he  took  his  deed  takes  the  land  free  of  the  defeasance:  Patterson  v. 
Donner,  48   Cal.   369. 

Eecitals  in  Deeds. — A  recital  of  facts  in  a  deed  is  conclusive  against 
the  grantor  and  his  privies:  Simson  v.  Eckstein,  22  Cal.  580;  but  this 
rule  does  not  apply  to  the  recital  of  collateral  acts  not  essential  to  a 


Dekds — Grants — Conveyances.  189 

conveyance  of  the  estate  granted:  Ingersoll  v.  Truebody,  40  Cal.  G03. 
The  language  of  a  deed  is  sometimes  used  as  admissions  of  the  gr.mtor: 
I'Yanklin  v.  Dorland,  28  Cal.  175,  87  Am.  Dec.  111.  See  McCreery  v. 
Duane,  52  Cal.  293.  If  a  deed  contains  operative  words  sufEcient  to 
transfer  title,  it  is  not  invalidated  by  other  words  if  inserted  under  the 
belief  that  the  facts  stated  were  necessary  to  pass  title:  Ryan  v.  To-mlin- 
Bon,  39  Cal.  G39.  In  that  case  the  deed  recited  that  it  was  executed  by 
the  trustees  of  a  town  in  obedience  to  a  judgment  of  the  county  court. 
It  was,  but  the  judgment  of  the  county  court  was  subsequently  decided 
to  be  void. 

Contracts  to  Execute  Deed. — A  contract  to  execute  "a.  good  and  suffi- 
cient deed"  is  not  a  contract  to  convey  a  good  title:  Green  v.  Covil- 
laud,  10  Cal.  317,  70  Am.  Dec.  725.  See,\also,  Brown  v.  Covillaud,  6  Cal. 
566;  but  a  contract  to  sell  land  and  execute  a  good  and  sufficient  deed  is 
a  contract  to  convey  title:  Haynes  v.  White,  55  Cal.  38.  Such  contract 
eallsi  for  a  deed  free  of  all  encumbrances:  Preble  v.  Abrahams,  88  Cal. 
245,  22  Am.  St.  Rep.  301,  26  Pac.  99.  See  Rogers  v.  Borchard,  82  Cal. 
347,  22  Pac.  907.  An  agreement  to  convey  land  "when  he  [the  equitable 
owner]  could  make  a  deed"  is  an  agreonient  to  make  a  deed  as  sonu  as 
the  title  vested  in  the  maker  of  the  contract:  Burlingame  v.  Rowland, 
77  Cal.  315,  19  Pac.  526,  1  L.  R.  A.  829. 

Installment  Sales  Contract. — A  tract  of  land  (description)  was  to  be 
sold  upon  the  installment  plan  for  $438,700;  cash  down,  $1,000;  $37,700 
before  July  1,  1887;  $100,000,  January  25,  1888;  $150,000  on  or  be- 
fore July  25,  1888,  and  the  balance  on  or  before  July  25,  1889,  with 
interest  at  the  rate  of  six  per  cent  per  year  on  deferred  payments  from 
Ju.e  25,  1887.  It  was  agreed,  "for  the  purpose  of  enabling  the  second 
party  to  subdivide  and  resell  the  land,  the  second  party  shall  have  the 
right,  after  the  payment  due  July  1,  1887,  is  made,  to  enter  upon  said 
land  for  the  purpose  of  making  surveys,  constructing  roads,  developing 
and  piping  water,  and  making  other  improvements,  provided  that  the 
inclosurcs  of  the  first  party  shall  be  left  practically  unimpaired."  It 
was  also  agreed  that  the  owner  "should  execute  deeds  of  conveyance  of 
lots  and  subdivisions  of  the  tract  as  sales  were  made"  (a  minimum 
price  was  fi^xed  at  which  diflFerent  portions  thereof  should  be  sold),  the 
sales  to  be  made  for  not  less  than  one-third  cash,  the  balance  to  be 
secured  by  mortgage  upon  the  portion  sold,  plaintiff  to  receive  the  cash 
and  credit  the  same  on  his  contract,  and  also  to  receive  the  notes  and 
mortgages  given  by  the  purchasers,  and  when  they  were  paid,  to  credit 
the  amount  on  his  contract.  As  to  the  payment  due  July  1,  1887,  time 
was  made  of  the  essence  of  the  contract.  "It  is  further  understood  and 
agreed  that  the  party  of  the  first  part  shall  remain  in  possession  of  said 
ranch  until  the  full  payment  of  installments  of  the  purchase  money 
to  be  paid  on  or  before  July  25,  1888,  as  above  stipulated,  excepting  such 
portions  as  may  be  conveyed  to  purchasers  as  above  agreed  or  such 
portions  as  may  be  appropriated  to  roads  or  other  improvements,  as 
above  stipulated,  and  shall  receive  the  rents  and  profiits  thereof  for 
hi-  own  use  and  benefit."  Upheld:  "Wolfskill  v.  County  of  Los  Angeles, 
86  Cal.  405,  24  Pac.   1094. 

Lost  Deed. — If  a  deed  is  lost  or  destroyed,  a  court  of  equity  has  au- 
thority to  order  a  ne^v  one  executed.  It  was  also  held  that  one  de- 
mand is  sufficient:  Cummings  v.  Coe,  10  Cal.  529;  Conlin  v.  Ryan,  47 
Cal.  71.  It  seems  reasonable  to  suggest  that  an  action  to  compel  the 
grantor  to  execute  a  new  deed  would  not  be  necessary  in  an  action  to 
quiet  title  under  section  738,  California  Code  of  Civil  Procedure,  by  a 
grantee  not  in  possession.  When  Conlin  v.  Ryan  wu3  decided,  such 
action  did  not  lie  except  in  favor  of  a  party  in  possession:  See  "Haben- 
dum Claose. " 


190  New  Book  of  Forms. 

Assignment  of  Deed. — It  is  Lold  in  California  that  title  does  not  pass 
to  land  by  indorsement  or  assignment  of  a  deed.  At  most,  only  an 
equitable  interest  in  the  land  passes  by  it:  Dupont  v.  Witherman,  10  Cal. 
354. 

Presumptions. — Under  section  1105  of  California  Civil  Code  a  fee 
simple  is  presumed  to  pass  by  grant  of  real  property  unless  it  clearly 
appears  that  a  less  estate  was  intended;  Pellissier  v.  Corker,  103  Cal. 
516,  37  Pac.  465. 

Validity  of  Deed — Rule  of  Property. — The  decisions  of  the  California 
courts  upholding  trust  deeds  have  become  a  rule  of  property,  and  should 
not  be  disturbed  even  if  erroneous,  and  the  question  is  not  now  open 
to  discussion.  They  are  little  more  than  a  mortgage  with  a  power  to 
convey.  They  convey  no  right  to  possession;  the  land  is  subject  to  be 
held  as  a  homestead  as  against  a  creditor  not  secured  by  the  trust  deed 
or  other  lien,  and  grantor  may  devise  and  transfer  the  property  subject 
^o  the  trust:  Sacramento  Bank  v.  Alcorn,  121  Cal.  379,  53  Pac.  813: 
Staacke  v.  Bell,  125  Cal.  309,  57  Pac.  1012. 

Trusts  in  Deeds. — Words  expressive  of  an  intent  to  create  a  trust 
mav  be  used  in  any  deed,  and  when  so  used  will  be  enforced:  Eldridge 
V.  See  Yup  Co.,  17  Cal.  44.  Such  words  appear  to  have  been  skillfully 
used  in  the  grant  construed  in  that  case;  but  because  they  conflicted  with 
a  rule  of  law  not  permitting  words  granting,  selling,  and  conveying 
to  be  nullified  by  a  statement  of  the  uses  to  which  the  subject  granted 
was  to  be  put,  the  See  Yup  Company  took  nothing  by  the  grant.  A 
deed  intended  to  pass  title  cannot  be  nullified  by  the  subsequent  execu- 
tion of  an  invalid  will  reciting  that  the  property  was  deeded  in  trust 
for  certain  purposes:  Garnsey  v.  Gothard,  90  Cal.  603,  27  Pac.  516.  See 
"Trust  Deed."' 

Trust  Deeds  Generally. — A  trust  deed  is  a  conveyance  to  a  person  in 
trust  to  do  the  things  specified  in  it.  The  legal  title  passes  to  the  gran- 
tee and  he  is  given  power  to  sell  the  property  and  transmit  the  title  to  the 
purchaser:  More  v.  Calkins,  95  Cal.  435,  29  Am.  St.  Eep.  128,  30  Pac.  583; 
Green  v.  Butler,  26  Cal.  595;  Powell  v.  Patison,  100  Cal.  234,  34  Pac.  676; 
Patridge  v.  Shepard,  71  Cal.  470,  12  Pac.  480;  Grant  v.  Burr,  54  Cal. 
298;  citrd,  8  Mont.  45,  19  Pac.  403.  Such  deeds  are  most  strongly  con- 
strued against  the  trustee:  Sprague  v.  Edwards,  48  Cal.  239;  Fuquay 
V.  Stickney,  41  Cal.  583.  If  the  instrument  conveys  land  to  another 
to  secure  the  debt  of  a  third  person,  it  is  not  a  mortgage,  but  a  deed  of 
trust:  Bateman  v.  Burr,  57  Cal.  480;  Durkiu  v.  Burr,  60  Cal.  360;  cited, 
8  Mont.  45,  19  Pac.  403;  Cormerais  v.  Genella,  22  Cal.  116;  Felton  v.  Le 
Breton,  92  Cal.  457,  28  Pac.  490.  In  cases  where  there  is;  a  doubt,  what 
is  claimed  to  be  a  trust  deed  will  be  held  to  be  a  mortgage:  Banta  v. 
Wise,  135  Cal.  277,  67  Pac.  129.  A  personal  action  cannot  be  brought 
to  collect  a  debt  secured  by  a  trust  deed  until  the  security  is  exhausted: 
Hodgkins  v.  Wright,  127  Cal.  688,  60  Pac.  431. 

Execution  and  Delivery  of. — As  a  general  rule,  a  trust  deed  to  sell 
property  and  pay  debts  need  not  be  delivered  to  pass  the  legal  title  to 
the  grantee.  The  assent  of  the  beneficiary  is  not  necessary,  nor  is  it 
neessary  that  the  grantor  should  be  indebted  to  him,  but  a  creditor 
of  the  grantor  may  have  the  right  to  question  it:  Burr  v.  Schroder,  32 
Cal.  609. 

Enforcement  of  Trust. — The  death  of  the  grantor  does  not  revoke  the 
trust  nor  limit  the  effect  of  the  deed.  It  is  not  necessary  to  present  to 
thii  administrator  of  the  grantor's  estate  the  claims  secured  by  the  deed: 
More  V.  Calkins,  95  Cal.  435,  29  Am.  St.  Eep.    128,  30  Pac.  583.     A  deed 


Deeds — Grants — Conveyances.  191 

to  a  party  not  a  creditor  authorizing  him  to  sell  the  land  at  public 
auetion  and  execute  to  the  purchaser  a  deed  of  the  land  sold,  upon  de- 
fault in  payirifj  the  debt  or  interest  as  it  falls  due,  and  out  of  the  pro- 
ceeds to  satisfy  the  trust  generally  and  pay  the  surplus  to  the  grnntor, 
is  not  a  mortgage  requiring  foreclosure  and  sale:  Kock  v.  Briggs,  14  Cal. 
256,  73  Am,  Dec.  651;  cited,  8  Mont.  44,  10  Pac.  403.  A  beneficiary  under 
a  trust  deed  may  purchase  at  a  sale  in  pursuance  of  the  trust:  Felton  v. 
Le  Breton,  92  Cal.  457,  28  Pac.  490;  Savings  etc.  Soc.  v.  Deoring,  66  Cal. 
281,  5  Pac.  353.  If  a  person  purchased  at  a  trustee's  sale  under  an  agree- 
ment with  the  trustees  that  he  should  pay  nothing  for  the  property,  and 
Bhould  hold  it  subject  to  the  discretion  of  the  trustees,  the  sale  is  fraudu- 
lent and  will  be  set  aside:  Scott  v.  Sierra  Lumber  Co.,  67  Cal.  71,  7 
Pac.  131.  If  the  amount  bid  at  a  trustee's  sale  is  paid  by  check,  the 
Bale  is  good  if  the  check  was  cashed.  The  fact  that  the  trustee  was  the 
real  creditor  does  not  invalidate  the  sale:  Cary  v.  Brown,  62  Cal.  373. 

Foreclosure  Under  Trust  Deeds. — If  a  trust  deed  secures  a  number  of 
bonds,  any  single  bondholder  may  foreclose  the  deed  for  nonpayment  of 
principal  or  interest;  and  this  is  so  notwithstanding  the  fact  that  the 
deed  provides  that  the  trustee  is  only  to  act  upon  the  written  request 
of  a  majority  of  the  bondholders;  and  a  demand  upon  the  debtor  is 
not  necessary  to  be  made  before  action  is  commenced,  and  indemnity 
to  the  trustee  need  not  be  offered  unless  he  demands  it:  Citizens'  Bank 
V.  Los  Angeles  Loan  Co.,  131  Cal.  187,  82  Am.  St.  Kep.  341,  63  Pac.  462. 

Accepting  a  Note  of  Grantor, — If  the  beneficiary  accepts  a  promissory 
note  of  the  grantor  and  his  grantee  in  payment  of  all  sums  due,  the  trust 
is  extinguished:   Savings  etc.  Soc.  v.  Burnett,  106  Cal.  514,  39  Pac.  922. 

Strict  Construction  of  Trust  Deed. — Such  sales  will  be  strictly  con- 
strued; but  a  sale  for  more  than  is  due  is  not  void  in  the  absence  of 
fraud,  bad  faith  or  actual  damages,  but  the  debtor  has  a  right  of  action 
to  recover  the  surplus:  Savings  etc.  Soc.  v.  Burnett,  106  Cal.  514,  39 
Pac.  922. 

Subsequent  Advances. — TVhen  the  creditor  has  the  option  to  make  pay- 
ments or  advances  on  account  of  the  debtor,  the  deed  of  trust  cannot 
be  enforced  against  subsequent  encumbrancers  of  the  debtor  under  a  sec- 
ond deed  of  trust  for  advances  made  after  the  second  deed  of  trust 
or  encumbrances.  The  notice  miist  be  actual  notice  and  not  the  con- 
structive notice  given  bv  recording  the  encumbrances  or  deed:  Saving 
etc.  Soc.  V.  Burnett,  106*  Cal.  514,  39  Pac.  922. 

Notice  of  Sale  Under  Trust — Recitals  in  Deed. — If  the  deed  provides 
that  in  default  of  payment,  and  in  the  event  of  a  sale,  the  recitals  in 
any  deed  executed  by  the  trustee  should  be  conclusive  evidence  of  such 
default,  of  the  application  of  the  creditor,  the  sale  of  the  property,  and 
the  publication  of  the  notice  of  sale,  held,  in  the  absence  of  fraud,  the 
deed  executed  by  the  trustees  is  valid:  Cary  v.  Brown,  62  Cal.  373.  See 
note,   "Enforcement  of  Trust." 

Sale  and  Deficiency. — Stockholders  of  a  bank  are  not  the  bank,  even 
if  they  are  trustees  of  a  trust  deed  to  the  bank;  and  a  sale  to  the 
hank  by  the  trustees  is  not  a  sale  to  themselves.  If  there  is  a  deficiency, 
after  the  sale  upon  a  promissory  note  for  which  the  tnist  deed  was 
security,  an  action  lies  upon  it  to  recover  the  balance  due  after  crediting 
the  amount  received  from  the  sale  loss  the  costs  of  sale:  Copsey  v.  Sac- 
ramento Bank,  133  Cal.  659,  85  Am.  St.  Rep.  238,  66  Pac.  7. 

Reconveyance. — "When  the  trust  is  satisfied  before  sale  it  is  the  duty 
O"  the  trustors  to  convey  the  property  to  their  grantor:  Boswick  v.  Mc- 
Evorv,  62  Cal.  496.  See,  also,  Chapman  v.  Bank  of  California,  97  CaL 
155.  31  Pac.  896. 


192  New  Book  of  Forms. 

Redemption. — There  is  no  redemption  sale  under  trust  deed  which  con- 
tains a  power  of  sale:  Koch  v.  Briggs,  14  Cal.  256,  73  Am.  Dec.  fiol. 

California  Code  Provisions  to  be  Considered  in  Relation  to  Trust 
Deeds. — Sections  3617,  3627  and  3629  of  the  Political  Code  upon  the  sub- 
ject of  taxation,  recognizing  trust  deeds  as  property.  Sections  57-4, 
2872,  2924  of  the  Civil  Code  recognizing  them  by  implication  as  a  mode 
of  securing  loans.  Those  sections  seem  to  constitute  an  exception  to 
section  8.57  of  the  Civil  Code,  and  in  Sacramento  Bank  v.  Alcorn,  121 
CaL  379,  53  Pae.  813,  the  court  held  that  they  did. 


No,  236. — Deed  of  Administratrix. 

This  Indenture,  made  the  twentieth  day  of  January,  igo6,  at 
the  city  and  county  of  San  Francisco,  state  of  California,  by  and 
between  M.  J.,  the  duly  appointed,  quahfied,  and  acting  adminis- 
tratrix of  the  estate  of  T.  J.,  deceased,  late  of  the  city  and  county 
aforesaid,  the  party  of  the  first  part,  and  S.  S.  W.,  of  the  sanT>e 
place,  the  party  of  the  second  part,  witnesseth : 

That  whereas,  on  the  seventh  day  of  December,  IQ05,  the  su- 
perior court  of  the  city  and  county  of  San  Francisco,  state  of 
California,  made  an  order  of  sale  authorizing  the  said  party  of 
the  first  part  to  sell  certain  real  estate  of  the  said  T.  J.,  deceased, 
situated  in  said  city  and  county  of  San  Francisco,  state  of  Cali- 
fornia, and  specified  and  particularly  described  in  said  order  of 
sale,  either  in  one  parcel  or  in  subdivisions,  as  the  said  party  of 
the  first  part  should  judge  most  beneficial  to  said  estate. 

And  which  said  order  of  sale,  now  on  file  and  of  record  in  the 
said  superior  court,  is  hereby  referred  to  and  made  a  part  of  this 
indenture. 

And  whereas,  under  and  by  virtue  of  said  order  of  sale,  and 
pursuant  to  legal  notices  thereof,  the  said  party  of  the  first  part, 
on  the  fourth  day  of  January,  1905,  at  the  auction  salesroom  of 
J.  M.,  in  said  city  and  county,  between  the  hours  of  nine  o'clock 
in  the  morning  and  the  setting  of  the  sun  on  the  same  day,  to  wit : 
at  tzvelve  o'clock  M.,  offered  for  sale  in  one  parcel  (judging  it 
most  beneficial  to  said  estate),  at  public  auction,  and  subject  to 
confirmation  of  said  superior  court,  the  said  real  estate,  situated 
in  the  said  city  and  county,  and  specified  and  described  in  said 
order  of  sale  as  aforesaid,  and  at  such  sale  the  said  party  of  the 
second  part  became  the  purchaser  of  the  whole  of  said  real  estate 
hereinafter  particularly  described,  for  the  sum  of  six  thousand 
Hve  hundred  and  seventy-five  dollars.  United  States  gold  coin,  he 
being  the  highest  and  best  bidder,  and  that  being  the  highest  and 
best  sum  bid. 

And  whereas,  the  said  superior  court,  upon  the  due  and  legal 
return  of  her  proceedings  under  the  said  order  of  sale,  made  by 
the  said  party  of  the  first  part  on  the  fifth  day  of  January,  ipoj, 
after  making  the  said  sale,  and  upon  due  and  legal  notice  of  at 


Deeds — Grants — Conveyances.  193 

leasi  ten  days,  given  as  the  lazv  requires,  did,  on  the  eighteenth 
day  of  Januarv,  nineteen  hundred  and  five,  make  an  order  con- 
firming^ said  sale,  and  directing  conveyances  to  be  executed  to 
the  said  party  of  the  second  part ;  a  certified  copy  of  which  order 
of  confirmation  was  recorded  in  the  office  of  said  county  recorder 
of  said  city  and  county,  within  which  the  said  land  sold  is  situ- 
ated, on  the  nineteenth  day  of  January,  iQOj,  which  said  order 
of  confirmation  now  on  file  and  of  record  in  said  recorder's  office, 
are  hereby  referred  to  and  made  a  part  of  this  indenture. 

Now,  therefore,  the  said  M.  J.,  administratrix  of  the  estate  of 
said  T.  J.,  deceased,  as  aforesaid,  the  party  of  the  first  part,  pur- 
suant to  the  order  last  aforesaid,  of  the  said  superior  court,  for 
and  in  consideration  of  the  sum  of  six  thousand  five  hundred  and 
seventy-five  (6,jyj)  dollars,  United  States  gold  coin,  to  her  in 
hand  paid  by  the  said  party  of  the  second  part,  receipt  whereof  is 
hereby  acknowledged,  has  granted,  bargained,  sold,  and  conveyed, 
and  bv  these  presents  does  grant,  bargain,  sell,  and  convey  unto 
the  said  party  of  the  second  part,  his  heirs  and  assigns  forever, 
all  the  right,  title,  interest,  and  estate  of  the  said  T.  J.,  deceased, 
at  the  time  of  his  death,  and  also  all  the  right,  title,  and  interest 
that  the  said  estate,  by  operation  of  law  or  otherwise,  may  have 
acquired,  other  than,  or  in  addition  to,  that  of  said  intestate,  at 
the  time  of  his  death,  in  and  to  all  that  certain  lot,  piece,  or  parcel 
of  land  situate,  lying,  and  being  in  said  city  and  county  of  San 
Francisco,  state  of  California,  and  bounded  and  described  as  fol- 
lows, to  wit:   [Description.] 

Together  with  the  tenements,  hereditaments  and  appurtenances 
whatsoever  to  the  same  belonging  or  in  anywise  appertaining. 

To  have  and  to  hold,  all  and  singular  the  above  mentioned 
and  described  premises,  together  with  the  appurtenances,  unto 
the  said  party  of  the  second  part,  his  heirs  and  assigns  forever. 

In  witness  whereof,  the  said  party  of  the  first  part,  administra- 
trix as  aforesaid,  has  hereunto  set  her  hand  and  seal,  the  day  and 
year  first  above  written. 

NOTE. — The  order  of  sale  need  not  be  recorded  in  the  county  re- 
corder's office,  but  the  order  confirming  the  sale  must  be:  C.  C.  P.,  sec 
1719. 

No.  237. — Deed — Simple  Form. 

I,  /.  L.,  of  the  city  and  county  of  San  Francisco,  state  of  Cali- 
fornia, for  and  in  consideration  of  the  sum  of  ^j.r  thousand  dol- 
lars, United  States  gold  coin,  do  by  these  presents  grant,  bargain, 
sell,  and  convey  unto  H.  J.,  of  the  same  place,  all  that  certain 
parcel  of  land  situate  in  the  city  and  county  of  San  Francisco, 
state  of  California,  and  described  as  follows:  [Description  by 
metes  and  bounds.] 

New  Forms — 13 


194  New  Book  of  Forms. 

To  have  and  to  hold  the  above  granted  and  described  premises 
with  all  its  appurtenances,  unto  the  said  H.  J.,  his  heirs  and  as- 
signs forei'cr. 

NOTE. — The  foregoing  is  as  effectnal  to  convey  a  lot  of  land  as  any 
form  in  the  book;  but  as  many  lawyers  have  been  so  accustomed  to  the 
old  forms,  it  is  almost  impossible  for  them  to  accept  the  change,  al- 
though the  words  "grant,  bargain  and  sell"  are  about  the  only  words, 
except  proper  description,  they  will  examine,  even  when  a  deed  is  offered 
in  evidence;  and,  besides,  they  are  considered  the  effectual  words,  and 
the  long  tenendum  and  habendum  clauses  are  passed  over  as  surplusage. 
It  is  good  everywhere,  unless  a  statute  is  found  prescribing  a  different 
form.  Care  should  be  taken  to  insert  the  name  of  grantee  in  deed  at 
tlu  time  of  grantor  signing  and  delivering  the  same,  otherwise  the  execu- 
tion is  imperfect,  and  will  not  vest  title  unless  grantor  gives  written 
authority  to  insert  any  name  one  pleases,  or  subsequently  ratifies  the  act 
by  accepting  the  purchase  price,  or  something  to  that  effect.  In  the 
body  of  the  instrument  the  names  of  grantor  and  grantee  in  full  should 
be  inserted  instead  of  the  initials.  The  description  should  be  filled  in 
with  care,  as  much  litigation  has  arisen  from  blunders  of  inexperienced 
persons  in  drawing  deeds  on  account  of  this  defect.  All  deeds  must  be 
acknowledged  before  recording.     In  California  a  seal  is  unnecessary. 

No.  238. — Deed — Bargain  and  Sale. 

This  Indenture;,  made  the  fourteenth  day  of  May,  in  the  year 
7Q05,  between  7.  B.  H.,  of  Lakcport,  county  of  Lakeport,  state  of 
California,  the  party  of  the  first  part,  and  I.  H.  T.,  oi  Big  Valley, 
county  aforesaid,  the  party  of  the  second  part,  witnesseth : 

That  the  said  party  of  the  first  part,  for  and  in  consideration 
of  the  sum  of  fifty  dollars,  gold  coin  of  the  United  States,  to  him 
in  hand  paid  by  the  said  party  of  the  second  part,  receipt  whereof 
is  hereby  acknowledged,  does  by  these  presents  grant,  bargain, 
sell  and  convey  unto  the  said  party  of  the  second  part,  and  to 
his  heirs  and  assigns  forever:  [Description.] 

Together  with  all  and  singular  the  tenements,  hereditaments, 
and  appurtenances  thereunto  belonging,  or  in  anywise  appertain- 
ing, and  the  reversion  and  reversions,  remainder  and  remainders, 
rents,  issues  and  profits  thereof. 

To  have  and  to  hold,  all  and  singular,  the  said  premises,  to- 
gether with  the  appurtenances,  unto  the 'said  party  of  the  second 
part,  and  to  his  heirs  and  assigns  forever. 

No.  239. — Deed — Bargain  and  Sale. 

This  Indenture,  made  the  fourteenth  day  of  /w«^,.in  the  year 
ipo5,  between  J.  IV.  R.,  oi  the  town  of  Snelling,  county  of  Mer- 
ced, state  of  California,  the  party  of  the  first  part,  and  /.  D.  W., 
of  said  town,  the  party  of  the  second  part,  witnesseth : 

That  the  said  party  of  the  first  part,  for  and  in  consideration 
of  the  sum  of  four  hundred  and  fifty  dollars,  gold  coin  of  tlie 
United  States  of  America,  to  him  in  hand  paid  by  the  said  party 


Deeds — Grants — Conveyances.  195 

of  the  second  part,  the  receipt  whereof  is  hereby  acknowledged, 
does  by  these  presents  grant,  bargain,  and  sell,  convey,  and  con- 
firm unto  the  said  party  of  the  second  part,  and  to  his  heirs  and 
assigns  forever,  all  that  certain  lot  and  parcel  of  land,  situate  in 
the  said  town  of  Snelling,  in  said  county  of  Merced,  state  of 
California,  and  bounded  and  described  as  follows,  to  wit:  [De- 
scription.] 

Together  with  all  and  singular  the  tenements,  hereditaments, 
and  appurtenances  thereunto  belonging,  or  in  anywise  appertain- 
ing, and  the  reversion  and  reversions,  remainder  and  remainders, 
rents,  issues,  and  profits  thereof. 

To  have  and  to  hold,  all  and  singular  the  said  premises,  to- 
gether with  the  appurtenances,  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns  forever. 

In  witness  whereof,  the  said  party  of  the  first  part  has  here- 
unto set  his  hand  and  seal,  the  day  and  year  first  above  written. 

No.  240. — Deed  of  Trust. 

This  deed  of  trust,  made  this  thirteenth  day  of  October,  in  the 
year  one  thousand  nine  hundred  and  four,  between  L.  A.,  of  Ala- 
meda county,  California,  the  party  of  the  first  part,  and  /.  C.  R., 
of  San  Francisco,  California,  the  party  of  the  second  part, 
and  F.  R.,  of  Sayi  Francisco,  California,  the  party  of  the  third 
part,  witnesseth :  That  whereas  the  said  ])arty  of  the  first  part  has 
borrowed  of  the  said  party  of  the  third  part  the  sum  of  twcnty- 
Hve  thousand  (25,000)  dollars,  in  gold  coin  of  the  United  States, 
and  has  agreed  to  repay  the  same  on  the  thirteenth  day  of  Octo- 
ber, in  the  year  one  thousand  nine  hundred  and  four,  to  the  said 
party  of  the  third  part,  in  like  gold  coin  with  interest  according  to 
the  terms  of  a  certain  promissory  note,  of  even  date  herewith, 
executed  and  delivered  therefor  by  the  said  party  of  the  first  part. 

Now  this  indenture  witnesseth,  that  the  said  party  of  the  first 
part,  in  consideration  of  the  aforesaid  indebtedness  to  the  said 
party  of  the  third  part;  and  for  the  purpose  of  securing  the  pav- 
ment  of  said  promissory  note,  and  of  any  sum  or  sums  of  monev, 
w^ith  interest  thereon,  that  may  now  or  hereafter  be  paid  or  ad- 
vanced by,  or  may  otherwise  be  due  to,  the  parties  of  the  second 
or  third  part  under  the  provisions  of  this  instmmcnt,  does  by 
these  presents  grant  unto  the  party  of  the  second  part,  and  to 
Jiis  successors  and  assigns,  the  piece  or  parcel  of  land  situated 
in  Murray  tozvnship,  county  of  Alameda,  and  state  of  California, 
described  as  follows:  [Description.] 

And  also,  all  the  interest,  or  other  claim  or  demand,  which  the 
said  party  of  the  first  part  _now  ha.y  or  may  hereafter  acquire 
of,  in  and  to  said  premises  with  the  appurtenances. 

To  have  and  to  hold,  the  same  to  the  party  of  the  second  part 
and  to  his  successors  and  assigns  [;/  a  plural  number  of  the  sec- 


19^  New  Book  of  Forms. 

ond  party  and  to  the  survivors  of  them  in  joint  tenancy'],  upon 
the  trusts  and  confidence  hereinafter  expressed,  to  wit: 

Firstly,  during  the  continuance  of  these  trusts,  the  party  of 
the  second  part  and  the  partj'  of  the  third  part,  their  successors 
and  assigns,  are  hereby  authorized  to  pay,  without  previous  notice 
all  or  any  liens,  and  all  or  any  encumbrances  now  subsisting,  or 
that  may  hereafter  exist  upon  said  premises  (excepting  taxes 
and  assessments  imposed  upon  this  deed  of  trust  or  the  money 
secured  hereby)  which  may  in  their  judgment,  affect  said  prem- 
ises or  these  trusts ;  and  they  may  in  their  discretion  at  the  ex- 
pense of  said  party  of  the  first  part,  contest  the  payments  o\ 
any  such  liens  or  encumbrances,  or  may  defend  any  suit  or  pro- 
ceeding that  they  may  consider  proper  to  protect  the  title  to  said 
premises,  and  may  insure  buildings  on  said  premises,  and  these 
trusts  shall  be  and  continue  as  security  to  the  party  of  the  third 
part,  and  his  assigns,  for  the  repayment,  in  gold  coin  of  the 
United  States,  of  the  money  so  borrowed  by  the  said  party  of 
the  first  part  and  the  interest  thereon,  and  of  all  amounts  so 
paid  out  and  costs  and  expenses  incurred,  as  aforesaid,  with  in- 
terest on  such  payment  at  the  rate  of  one  per  cent  per  month  until 
final  payment. 

Secondly,  in  case  the  said  party  of  the  first  part  shall  well  and 
truly  pay,  or  cause  to  be  paid,  at  maturity,  in  gold  coin  as  afore- 
said, all  sums  of  money  so  borrowed,  as  aforesaid,  and  the  in- 
terest thereon,  and  shall  upon  demand  repay  all  other  moneys 
secured  or  intended  to  be  secured  hereby  and  also  the  reasonable 
expenses  of  this  trust,  then  the  party  of  the  second  part,*  his 
successors  and  assigns,  shall  reconvey  all  the  estate  in  the  prem- 
ises aforesaid  to  the  party  of  tlie  first  part  at  his  request  and 
cost. 

Thirdly,  if  default  shall  be  made  in  the  payment  of  any  of 
said  sums  of  principal  or  interest,  when  due,  in  tlie  manner  stip- 
ulated in  said  promissory  note,  or  in  the  reimbursements  of  any 
amounts  herein  provided  to  be  paid,  or  of  any  interest  thereon; 
then  the  said  party  of  the  second  part,  his  successors  or  assigns, 
on  application  of  the  party  of  the  third  part,  or  his  assigns,  shall 
sell  the  above-granted  premises,  or  such  part  thereof  as  in  his 
discretion,  he  shall  find  it  necessary  to  sell  in  order  to  accomplish 
the  objects  of  these  trusts,  in  the  manner  following,  namely:  He 
shall  first  publish  the  time  and  place  of  such  sale,  with  a  descrip- 
tion of  the  property  to  be  sold,  at  least  once  a  week  for  fouf 
weeks,  in  some  newspaper  published  in  the  said  county  of  Ala- 
meda, and  may  from  time  to  time  postpone  such  sale  by  publi- 
cation ;  and  on  the  day  of  sale  so  advertised,  or  any  day  to  which 
such  sale  may  be  postponed  he  may  sell  the  property,  so  adver- 
tised, or  any  portion  thereof  at  public  auction,   in  any  county 

•K  there  is  more  than  one  trustee,  auid,  "to  the  survivxjr  of  them 
in  joint  tenancy." 


Deeds — Grants — Conveyances.  197 

where  any  part  of  said  property  may  be  situated,  to  the  hi.c^hcst 
cash  bidder;  and  the  holder  or  holders  of  said  promissory  note, 
his  ai^^ents  or  assigns  and  the  party  of  the  second  part  may  bid 
and  purchase  at  such  sale. 

And  the  partv  of  the  second  part,  or  assisjns,  shall  establish  as 
one  of  the  conditions  of  such  sale,  that  all  bids  and  payments  for 
the  said  property  shall  be  made  in  like  i2^old  coin  as  aforesaid,  and 
upon  such  sale  he  shall  make,  execute,  and  after  due  payment 
made,  shall  deliver  to  the  purchaser  or  purchasers,  his  or  their 
heirs  and  assigns,  a  deed  or  deeds  of  grant,  bargain  and  sale  of 
the  above-granted  premises,  and  out  of  the  proceeds  thereof  shall 
pay. 

First,  the  expenses  thereof,  together  with  the  reasonable  ex- 
penses of  this  trust,  including  counsel  fees  of  Hve  hundred  dol- 
lars, in  gold  coin,  which  shall  become  due  upon  any  default  made 
by  the  said  party  of  the  first  part  in  any  of  the  payments  afore- 
said. 

Second,  all  sums  which  may  have  been  paid  by  the  said  party 
of  the  second  or  third  part,  their  successors  or  assigns,  or  the 
holders  of  the  note  aforesaid,  and  not  reimbursed,  and  which  may 
then  be  due,  whether  paid  on  account  of  encumbrances  or  insur- 
ance, as  aforesaid,  or  in  the  performance  of  any  of  the  trusts 
herein  created,  and  with  whatever  interest  may  have  accrued 
thereon,  next  the  amount  due  and  unpaid  on  said  promissory 
note,  with  whatever  interest  may  have  accrued  thereon ;  and 
lastly  the  balance  or  surplus  of  such  proceeds,  if  any,  to  said 
party  of  the  first  part,  his  heirs  or  assigns. 

And  in  the  event  of  the  sale  of  said  premises  or  any  part  there- 
of, and  the  execution  of  a  deed  or  deeds  therefor,  under  these 
trusts,  then  the  recitals  therein  of  default  and  publication  shall  be 
conclusive  proof  of  such  default  and  of  the  due  publication  of 
such  notice ;  and  of  any  such  deed  or  deeds  with  such  recitals 
therein  shall  be  effectual  and  conclusive  against  the  said  partv 
of  the  first  part,  his  heirs  or  assigns,  and  all  other  persons ;  and 
the  receipt  for  the  purchase  money  contained  in  any  deeds  exe- 
cuted to  the  purchaser,  as  aforesaid,  shall  be  a  sufficient  dis- 
charge to  such  purchaser  from  all  obligations  to  see  to  the  proper 
application  of  the  purchase  money,  according  to  the  trusts  afore- 
said. 

No.   241. — Trust   Deed. 

This  (Iced  of  trust,  made  this  sixteenth  day  of  June,  iQOj,  be- 
tween /.  S.,  of  the  city  and  county  of  San  Francisco,  the  partv  of 
the  first  part,  and  /.  D.  F.,  R.  B.  S.  and  A.  C,  senior,  of  San 
Francisco,  California,  parties  of  the  second  part,  and  the  San 
Francisco  Saz-ings  Union,  a  corporation,  of  the  third  part,  wit- 
nessed! : 

Whereas,  the  said  party  of  the  first  part,  the  said  /.  S.,  has 
borrowed  and  received  of  the  said  San  Francisco  Sazfings  Union, 


198  New  Book  oi^  Forms. 

in  gold  coin  of  the  United  States,  the  sum  of  tzvo  thousand 
(2,000)  dollars,  and  has  agreed  to  repay  the  same  on  the  sixteenth 
day  of  June,  IQ06,  to  the  San  Francisco  Savings  Union,  or  its 
order,  at  its  office  in  San  Francisco,  in  like  jrold  coin,  with  inter- 
est, according  to  the  terms  of  a  certain  promissory  note,  of  even 
date  herewith,  executed  and  delivered  therefor,  by  the  said  /.  S. 

Now,  this  indenture  witnesseth,  that  the  said  party  of  the  tirst 
part,  in  consideration  of  the  aforesaid  indebtedness  to  the  San 
Francisco  Saznngs  Union,  and  of  one  dollar  to  him  in  hand  paid 
by  the  parties  of  the  second  part,  the  receipt  whereof  is  hereby 
acknowledged,  and  for  the  purpose  of  securing  the  payment  of 
said  promissory  note,  and  of  any  sum  or  sums  of  money,  with 
interest  thereon,  that  may  be  paid  or  advanced,  or  may  other- 
wise be  due,  it  is  agreed  that  the  recitals  of  default  and  publi- 
cation in  any  deed  or  notice  shall  be  conclusive  proof  of  such 
default  and  of  the  due  publication  of  such  notice ;  and  any  such 
deed  or  deeds,  with  such  recitals  therein,  shall  be  effectual  and 
conclusive  against  the  said  party  of  the  first  part,  his  heirs  or 
assigns,  and  all  other  persons ;  and  the  receipt  for  the  purchase 
money  contained  in  any  deeds  executed  to  the  purchaser,  as 
aforesaid,  shall  be  a  sufficient  discharge  to  such  purchaser  from 
all  obligation  to  see  to  the  proper  application  of  the  purchase 
money,  according  to  the  trusts  aforesaid. 

In  witness  whereof,  etc. 

NOTE.— The  above  trust  deed  is  used  instead  of  a  mortgage  by  some 
corporations  loaning  money.  It  conveys  the  title,  and  need  not  be  fore- 
closed; nor  is  there  a  time  for  redemption.  All  these  points  have  been 
decided  by  the  supreme  court  of  the  state  of  California. 

No.   242. — Reconveyance   of   Trust   Premises, 

Know  all  Men  by  these  Presents:  That  whereas,  all  the 
indebtedness  secured  to  be  paid  by  the  deed  of  trust  executed  by 
/.  S.  to  us,  /.  De  F.,  R.  B.  S.,  and  A.  C,  Sr.,  of  the  city  and 
county  of  San  Francisco,  state  of  California,  hearing  date  the 
sixteenth  day  of  June,  ipoj,  and  recorded  in  the  office  of  the 
recorder  in  and  for  the  city  and  county  of  San  Francisco,  state 
of  California,  in  Liber  ^46  of  Deeds,  at  page  4g6  et  seq.,  has  been 
paid. 

Now,  therefore,  in  consideration  of  one  dollar  to  us  paid  by 
said  /.  S.,  receipt  whereof  is  hereby  acknowledged,  we,  the  said 
/.  De  F.,  R.  B.  S.,  and  A.  C,  do  by  these  presents  grant,  remise 
release,  and  reconvey  to  him  all  the  estate  and  interest  derived  to 
us  by  or  through  said  deed  of  trust,  in  the  lands  situated  in  the 
city  and  county  of  San  Francisco,  and  described  as  follows : 
[Description.]  Being  the  same  land  and  premises  described  in 
the  aforesaid  deed  of  trust. 

Together  with  the  tenements,  hereditaments,  and  appjirte- 
nances  thereto  belonging. 


Deeds — Grants — Conveyances.  199 

To  have  and  to  hold  the  same  without  any  warranty  unto  the 
said  /.  S.,  his  heirs,  and  assigns  forever. 

No.  243. — Deed  of  Gift, 

This  Indenture,  made  the  thirty-first  day  of  April,  in  the 
year  1905,  between  /.  A.  C,  of  the  county  of  Sierra,  state  of 
California,  the  party  of  first  part,  and  IV.  C,  his  son,  of  said 
county,  the  party  of  the  second  part,  witnesseth : 

That  the  said  party  of  the  first  part,  for  and  in  consideration 
of  the  love  and  aflfection  which  the  said  party  of  the  first  part 
has  and  bears  unto  the  said  party  of  the  second  part,  as  also 
for  the  better  maintenance,  support,  protection  and  livelihood  of 
the  said  party  of  the  second  part,  does  by  these  presents  give, 
grant,  alien,  and  confirm  unto  the  said  party  of  the  second  part, 
and  to  his  heirs  and  assigns  forever,  all   [description]. 

Together  with  all  and  singular  the  tenements,  hereditaments, 
and  appurtenances  thereunto  belonging,  or  in  anywise  appertain- 
ing, and  the  reversion  or  reversions,  remainder  and  remainders, 
rents,  issue,  and  profits  thereof. 

To  have  and  to  hold,  all  and  singular,  the  said  premises,  to- 
gether with  the  appurtenances,  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns  forever. 

No.  244. — Guardian's  Deed. 

This  Indenture,  made  the  eighth  day  of  April,  looj.  at  the 
city  and  county  of  San  Francisco,  state  of  California,  by  and  be- 
tween M.  J.,  the  duly  appointed,  qualified,  and  acting  guardian 
of  the  persons  and  estates  of  IV.  J.,  A.  J.,  K.  J.,  C.  /.,  E.  J.  and 
E.  J.,  minors,  the  party  of  the  first  part,  and  B.  R.  of  the  said 
rity  and  county,  the  party  of  the  second  part,  witnesseth : 

That  whereas,  on  the  fourteenth  day  of  June,  ipoj,  the  superior 
court  of  the  said  city  and  county  of  San  Francisco,  state  of  Cali- 
fornia, duly  made  an  order  of  sale,  authorizing  the  said  party  of 
the  first  part  to  sell  certain  real  estate  of  the  said  minors,  situ- 
ated in  said  city  and  county  of  San  Francisco,  state  of  California, 
and  specified  and  particularly  described  in  said  order  of  sale. 

And  whereas,  under  and  by  virtue  of  said  order  of  sale,  and 
pursuant  to  legal  notices  given  thereof,  the  said  party  of  the 
first  part,  on  the  fourteenth  day  of  July,  1905,  at  the  auction 
salesrooms  of  S.  P.  M.,  in  said  city  and  count}%  at  tzcelve  o'clock 
M.,  oft'ered  for  sale,  in  one  parcel,  at  public  auction,  and  subject 
to  confirmation  by  said  superior  court,  the  said  real  estate,  situ- 
ated in  the  said  city  and  county,  and  specified  and  described  in 
said  order  of  sale  aforesaid,  and  at  such  sale  the  said  party  of 
the  second  part  became  the  purchaser  of  the  zvhole  of  said  real 
estate,  hereinafter  particularly  described,  for  the  sum  of  fourteen 
hundred  dollars,  gold  coin  of  the  United   States,  he  being  the 


200  New  Book  of  Forms. 

hig^hest  and  best  bidder  and  that  being  the  highest  and  best  stmi 
bid. 

And  whereas,  the  said  superior  court,  upon  the  due  and  legal 
return  of  her  proceedings  under  the  said  order  of  sale,  made  by 
the  said  party  of  the  first  part  on  the  iirst  day  of  April,  1905, 
after  making  the  said  sale,  upon  due  and  legal  notice  of  at  least 
ten  days,  given  in  such  manner  as  the  judge  of  said  court  had 
directed,  did,  on  the  said  first  day  of  April,  1905,  make  an  order 
confirming  said  sale,  and  directing  conveyances  to  be  executed  to 
the  said  party  of  the  second  part,  a  certified  copy  of  which  order 
of  confirmation  was  recorded  in  the  office  of  the  said  county  re- 
corder of  the  said  city  and  county,  within  which  the  said  land 
sold  is  situated,  on  the  second  day  of  April,  iQOj,  which  said 
order  of  confirmation  now  on  file  and  of  record  in  said  recorder's 
office,  are  hereby  referred  to  and  made  a  part  of  this  indenture. 

Now,  therefore,  the  said  M.  J.,  the  guardian  of  the  persons 
and  estates  of  the  above-named  minors,  as  aforesaid,  the  party 
of  the  first  part,  pursuant  to  the  order  last  aforesaid,  of  the  said 
superior  court,  for  and  in  consideration  of  the  said  sum  of  four- 
teen hundred  dollars,  gold  coin  of  the  United  States,  to  her  in 
hand  paid  by  the  said  party  of  the  second  part,  the  receipt  whereof 
is  hereby  acknowledged,  has  granted,  bargained,  sold,  and  con- 
veyed, and  by  these  presents  does  grant,  bargain,  sell,  and  con- 
vey unto  the  said  party  of  the  second  part,  his  heirs  and  assigns, 
forever,  all  the  right,  title,  interest  and  estate  of  the  said  W.  J., 
A.  J.,  K.  J.,  C.  J.,  E.  J.,  and  B.  J.,  minors,  in  and  to  all  that 
certain  lot,  piece,  or  parcel  of  land,  situated,  lying,  and  being  in 
the  said  city  and  county  of  San  Francisco,  state  of  California, 
and  bounded  and  particularly  described  as  follows,  to  wit:  [De- 
scription.] 

Together  with  all  the  tenements,  hereditaments  and  appurte- 
nances to  the  same  belonging  or  in  anywise  appertaining; 

To  have  and  to  hold,  all  and  singular,  the  above-mentioned 
and  described  premises,  together  with  the  appurtenances,  unto 
the  said  party  of  the  second  part,  his  heirs  and  assigns  forever. 

In  witness  whereof,  the  said  party  of  the  first  part,  guardian 
as  aforesaid,  has  hereunto  set  her  hand  and  seal,  the  day  and 
year  first  above  written. 

No.  245. — Deed  from  Husband  to  Wife. 

This  Indenture,  made  this,  etc.,  between  A.  B.,  of,  etc.,  of 
the  first  part,  and  C.  B.,  the  wife  of  said  A.  B.,  of  the  second 
part,  witnesseth : 

That  the  said  party  of  the  first  part,  for  and  in  consideration 
of  the  love  and  afifection  which  he  bears  toward  his  wife,  the 
said  C.  B.,  and  for  the  purpose  of  making  her  a  gift  [or,  for  the 
purpose  of  compensating  certain  advances  and  benefits  of  money 


Deeds — Grants — Conveyances.  201 

and  property  which  she  brought  to  said  party  of  the  first  part 
by  or  since  their  marriage,  or  for  other  purposes,  as  may  be], 
does  hereby  give,  grant,  alien,  and  convey,  unto  his  wife,  said 
party  of  the  second  part,  all  that  certain  property:  [Description.] 

To  have  and  to  hold  the  same  unto  the  said  party  of  the  sec- 
ond part,  her  heirs  and  assigns,  for  her  own  sole  and  separate  use, 
benefit,  and  behoof  forever. 

To  hold  and  enjoy,  all  and  singular  the  same,  and  every  part 
and  parcel  thereof,  as  and  for  her  separate  estate,  especially  re- 
linquishing for  himself  and  his  heirs  all  right  or  claim  to  the 
same,  or  any  part  thereof,  as  community  property,  so  that  the 
same  may  be  held  by  her  as  separate,  and  not  in  any  respect 
as  community  property. 

No.  246. — Deed  of  Mining  Claim. 

This  Indenture,  made  the  eighteenth  day  of  April,  in  the 
year  7905,  between  F.  G.,  of  the  eity  and  county  of  San  Fran- 
cisco, state  of  California,  the  party  of  the  first  part,  and  W.  C, 
of  Santa  Catalina,  county  of  Los  Angeles,  state  of  California, 
the  party  of  the  second  part,  witnesseth : 

That  the  said  party  of  the  first  part,  for  and  in  consideration 
of  the  sum  of  five  thousand  dollars,  gold  coin  of  the  United 
States  of  America,  to  him  in  hand  paid  by  the  said  party  of  the 
second  part,  the  receipt  whereof  is  hereby  acknowledged,  does 
by  these  presents  grant,  bargain,  sell,  remise,  release  and  forever 
quitclaim  unto  the  said  party  of  the  second  part  and  to  his  heirs 
and  assigns,  two  hundred  (200)  feet,  undivided,  in  that  certain 
viining  claim,  vein,  lead,  or  lode,  containing  gold  or  silver  and 
other  precious  metals,  situate,  lying  and  being  in  the  Santa  Cata- 
lina Island  Mining  District,  in  the  Island  of  Santa  Catalina, 
County  of  Los  Angeles,  state  of  California,  and  knoivn  as  the 
"Perseverance"  vein,  lead,  or  lode. 

Together  with  all  the  dips,  spurs,  and  angles,  and  also  all 
the  metals,  ores,  gold,  and  silver  bearing  quartz,  rock  and  earth 
therein ;  and  all  the  rights,  privileges,  and  franchises  thereto 
incident,  appendant,  and  appurtenant,  or  therewith  usually  had 
and  enjoyed ;  and  also  all  and  singular  the  tenements,  heredita- 
ments and  appurtenances  thereto  belonging  or  in  anywise  ap- 
pertaining, and  the  rents,  issues,  and  profits  thereof. 

To  have  and  to  hold,  all  and  singular  the  said  premises,  to- 
gether with  the  appurtenances  and  privileges  thereto  incident, 
unto  the  said  party  of  the  second  part,  his  heirs  and  assigns  for- 
ever. 

No.  247. — Deed  to  Incorporate  a  Mining  Company. 
This  Indenture,  made  the  sixth  day  of  August,  190^,  between 
the  undersigned,  the  parties  of  the  first  part,  and  the  "IV.  G.  and 
S.  M.  Co.,"  the  party  of  the  second  part,  witnesseth : 


202  New  Book  of  Forms. 

That  whereas,  the  said  "W.  G.  and  S.  M.  Co."  has  been  duly 
incorporated  under  the  laws  of  the  state  of  California,  and  it  is 
intended  by  this  instrument  to  transfer  to  the  said  parties  of 
the  second  part  all  the  right,  title  and  interest  of  the  said  parties 
of  the  first  part,  which  they  and  each  of  tJicm  have  and  claim  in 
and  to  the  mining  ground  and  claim  or  lode  and  its  appur- 
tenances, hereinafter  described. 

Now,  therefore,  Icnow  all  men  by  these  presents,  that  the  said 
parties  of  the  first  part  and  each  of  them  whose  names  are  here- 
unto subscribed,  in  consideration  of  certificates  of  stock  in  said 
incorporated  company  hereafter  to  be  issued  to  them,  their  and 
each  of  their  heirs  and  assigns,  in  conformity  with  the  by-laws 
of  said  corporation  heretofore  adopted,  do  by  these  presents 
grant,  bargain,  sell,  transfer,  remise,  relea.se,  and  quitclaim  unto 
the  said  party  of  the  second  part,  its  successors  and  assigns, 
all  their  and  each  of  their  right,  interest,  claim,  and  demand 
whatsoever,  in  law  or  equity,  of,  in,  or  to  all  that  certain  mining 
ground,  claim,  or  lode,  situate,  lying,  and  being  in  Cove  Mining 
District,  Kern  River,  county  of  Tulare,  and  state  of  California, 
and  known  as  the  "Winter"  lead  or  lode. 

Together  with  all  the  dips,  angles,  spurs,  and  variations  of 
said  mining  ground,  claim,  or  lode,  and  all  and  singular  the 
hereditaments  and  appurtenances  thereunto  belonging. 

To  have  and  to  hold  the  said  premises,  with  their  appur- 
tenances, unto  the  said  party  of  the  second  part,  its  successors 
and  assigns  forever. 

No.  248. — Deed  to  Incorporate  a  Mining  Company — Another 

Form, 

This  Indenture,  made  the  iirst  day  of  August,  ipoj,  between 
D.  S.  [naming  others],  parties  of  the  first  part,  and  the  H.  G.  L. 
G.  and  S.  M.  Co.,  whose  principal  place  of  business  is  at  the  city 
and  county  of  San  Francisco,  state  of  California,  party  of  the 
second  part,  witnesseth : 

That  whereas,  the  said  H.  G.  L.  G.  and  S.  M.  Co.  has  been 
duly  incorporated  under  the  laws  of  the  state  of  California,  to 
which  it  is  intended  by  this  instrument  to  transfer  all  the  right, 
title,  and  interest  of  the  parties  of  the  first  part,  which  they  and 
each  of  them  have  and  claim  in  and  to  the  mining  ground  and 
claim  or  lode  and  its  appurtenances  hereinafter  described. 

And  whereas,  on  the  tenth  day  of  June,  iQOj,  ten  mining 
claims  of  two  hundred  feet  each,  making  in  the  aggregate  tzuo 
thousand  feet,  were  duly  taken  up,  located,  and  recorded  in  the 
Beidah  District,  situated  in  the  county  of  Mono,  state  of  Cali- 
fornia, according  to  the  usages  of  said  mining  district ;  and 
whereas,  we,  the  undersigned,  are  the  owners  of  the  number  of 


Deeds — Grants — Conveyances.  203 

feet  set  opposite  to  each  of  our  names  respectively,  as  fo/lows, 
viz. : 

NAMES.  NUMBER    OF    FEET. 

Smith    [and  others].  Two  hundred. 

Said  claim  or  claims  beingf  called  and  known  by  the  name  of 
G.  S.  &  Company's  claims.      [Here  insert  particular  description.] 

Now,  therefore,  know  all  men  by  these  presents:  That  the 
parties  of  the  first  part,  and  each  of  -them,  whose  names  are 
hereunto  subscribed,  in  consideration  of  certificates  of  stock  in 
said  incorporated  company,  hereafter  to  be  issued  to  them,  they 
and  each  of  them,  and  assigns,  in  accordance  with  the  certificate 
of  incorporation,  and  in  conformity  with  the  by-laws  of  said 
corporation,  do  by  these  presents  grant,  bargain,  sell,  transfer, 
remise,  release,  and  quitclaim  unto  the  said  H.  G.  L.  G.  and  S. 
M.  Co.,  all  their  and  each  of  their  right,  title,  interest,  claim 
and  demand  whatsoever,  in  law  or  in  equity,  of,  in  and  to  all 
said  mining  ground,  claim,  or  claims,  or  quartz  lode,  situate, 
lying,  and  being  in  said  mining  district,  and  described  as  afore- 
said; together  with  all  the  dips,  angles,  spurs,  and  variations 
of  said  mining  ground  and  quartz  lode,  and  all  and  singular  the 
hereditaments  and  appurtenances ;  and  all  and  singular  the  min- 
ing tools,  arastras,  forges,  furnaces,  and  smelting  apparatus 
thereunto  belonging. 

To  have  and  to  hold  the  said  premises  wnth  their  appur- 
tenances, unto  the  said  H.  G.  L.  G.  and  S.  M.  Co.,  its  successors, 
and  assigns  forever. 

No.  249. — Deed  by  a  Corporation. 

This  Indenture,  made  this  third  day  of  September,  igo$,  by 
and  between  The  Y.  B.  M.  Co.,  a  corporation  duly  organized  un- 
der the  law  of  the  state  of  Califoniia,  whose  principal  place  of 
business  is  in  the  city  and  county  of  San  Francisco,  state  of 
California,  party  of  the  first  part,  and  /.  A''.  JV.  and  J.  M.  P.,  of 
said  city  and  county,  parties  of  the  second  part,  witnesseth: 

That  whereas,  the  said  party  of  the  first  part  is  a  corporation 
duly  incorporated  and  existing  under  and  by  virtue  of  the  laws 
of  the  state  of  California,  and  in  pursuance  of  the  statutes  in 
such  cases  made  and  provided,  has  acquired  and  is  the  owner 
of  a  certain  mine  known  as  The  Y.  B.  Mine,  situate  in  Bi^  Cot- 
tonwood Mining  District,  Salt  Lake  county,  UtaJi  Territory; 
and  whereas,  the  board  of  trustees  of  said  corporation,  duly 
assembled,  duly  passed  the  following  resolution : 

"/f  is  resolved  by  the  trustees  of  the  Y.  B.  M.  Co.,  that  it  is 
for  the  best  interest  of  said  company  to  sell  and  convey  said 
mine,  for  the  sum  of  thirty  thousand  dollars,  gold  coin  of  the 
United  States,  and  apply  the  proceeds  of  such  sale  for  the  pay- 
ment of  the  debts  of  saui  company,  and  H.  A'.  B.,  president,  and 


204  New  Book  of  Forms. 

7.  S.,  secretary,  of  said  Y.  B.  M.  Co.,  are  hereby  directed  and 
authorized  to  make,  execute  and  deliver,  for  and  in  behalf  of 
said  Y.  B.  M.  Co.,  and  as  its  act  and  deed,  to  said  W.  and  P., 
a  conveyance  of  said  mine  and  mining  location  [give  general 
description],  and  to  affix  to  said  conveyance  the  corporate  name 
and  seal  of  said  corporation." 

Now,  therefore,  in  pursuance  of  said  resolution  aforesaid,  and 
in  consideration  of  the  sum  of  thirty  thousand  (^0,000)  dollars, 
United  States  gold  coin,  paid  by  said  parties  of  the  second  part, 
the  receipt  whereof  is  hereby  acknowledged,  the  said  party  of 
the  first  part  doth  by  these  presents  grant,  bargain,  sell,  convey 
and  confirm  unto  the  said  parties  of  the  second  part,  their  heirs 
and  assigns  forever:   [Full  description.] 

Together  with  all  the  dips,  spurs,  and  angles,  and  also  all  the 
metals,  ores,  gold  and  silver-bearing  quartz,  rock  and  earth 
therein ;  and  also  all  and  singular  the  tenements,  hereditaments 
and  appurtenances  thereto  belonging  or  in  anywise  appertain- 
ing, and  the  rents,  issues,  and  profits  thereof. 

To  have  and  to  hold,  all  and  singular,  the  said  premises,  ten 
gether  with  the  appurtenances  and  privileges  thereto  incident, 
unto  the  said  party  of  the  second  part,  heirs  and  assigns  for- 
ever. 

In  witness  whereof,  the  said  party  of  the  first  part,  by  resolu- 
tion of  its  board  of  directors,  hath  caused  these  presents  to  be 
subscribed  by  its  president  and  secretary,  and  its  corporate  name 
and  seal  to  be  hereunto  affixed,  the  day  and  year  first  above 
written. 

NOTE. — Corporations  organized  for  the  purpose  of  mining  cannot  sell, 
lease,  mortgage,  or  otherwise  dispose  of  the  whole  or  any  part  of  the 
eorporation  's  mining  ground,  unless  such  act  be  ratified  by  the  holders 
of  a  least  two-thirds  of  the  capital  stock:  Cal.  Stats.  1880,  p.  131. 

No.   250. — Deed — Quitclaim. 

This  Indenture,  made  the  tenth  day  of  April,  in  the  year 
7905,  between  M.  L.  C,  of  the  city  and  county  of  San  Francisco, 
state  of  California,  the  party  of  the  first  part,  and  A.  W.  and 
/.  B.,  of  the  said  city  and  county,  the  parties  of  the  second 
part,  witnesseth : 

That  the  said  party  of  the  first  part,  for  and  in  consideration 
of  the  sum  of  one  hundred  dollars,  lawful  money  of  the  United 
States  of  America,  to  him  in  hand  paid  by  the  said  parties  of 
the  second  part,  the  receipt  whereof  is  hereby  acknowledged, 
does  by  these  presents  remise,  release,  and  forever  quitclaim  unto 
the  said  parties  of  the  second  part,  and  their  heirs  and  assigns, 
all  that  certain  lot,  piece,  or  parcel  of  land,  situate  in  the  said 
city  and  county  of  San  Francisco,  state  of  California,  and 
bounded  and  particularly  described  as  follows,  to  wit:  [Descrip- 
tion.] 


Deeds — Grants — Conveyances.  205 

Together  with  all  and  sinc^ular  the  tenements,  hereditaments 
and  appurtenances  thereunto  belonging-,  or  in  anywise  appertain- 
ing, and  the  reversion  and  reversions,  remainder  and  remainders, 
rents,  issues,  and  profits  thereof. 

To  have  and  to  hold,  all  and  singular  the  said  premises,  to- 
gether with  the  appurtenances,  unto  the  said  parties  of  the  second 
part   and   to  their  heirs  and   assigns    forever. 

No.  251. — Quitclaim  Deed. 

This  Indenture,  made  the  seventh  day  of  April,  in  the  year 
7905,  between  P.  R.  and  A.  R.,  his  zvife,  of  the  county  of  Mon- 
terey, state  of  California,  parties  of  the  first  part,  and  F.  B.,  of 
the  county  of  Los  Angeles,  state  of  California,  the  partv  of  the 
second  part,  witnesseth : 

That  the  said  parties  of  the  first  part,  for  and  in  consideration 
of  the  sum  of  one  thousand  five  hundred  dollars,  lawful  money 
of  the  United  States  of  America,  to  them  in  hand  paid  by  the 
said  party  of  the  second  part,  the  receipt  whereof  is  hereby 
acknowledged,  have  remised,  released,  and  forever  quitclaimed, 
and  by  these  presents  do  remise,  release,  and  forever  quitclaim, 
unto  the  said  party  of  the  second  part,  and  to  his  heirs  and  as- 
signs, all  [description]. 

Together  with  all  and  singular  the  tenements,  hereditaments 
and  appurtenances  thereunto  belonging,  or  in  anywise  appertain- 
ing, and  the  rents,  issues  and  profits  thereof. 

To  have  and  to  hold,  all  and  singular  the  said  premises,  to- 
gether with  the  appurtenances,  unto  the  said  party  of  the  second 
part,  and  to  his  heirs  and  assigns  forever. 

No.  252. — Quitclaim  Deed — Another  Form. 

This  Indenture,  made  the  tzvelfth  day  of  January,  in  the 
year  1905,  between  R.  J.,  of  the  county  of  Napa,  state  of  Cali- 
fornia, the  party  of  the  first  part,  and  G.  B.,  of  the  eity  and 
county  of  Sacramento,  state  of  California,  the  party  of  the  second 
part,  witnesseth : 

That  the  said  party  of  the  first  part,  for  and  in  consideration 
of  the  sum  of  two  hundred  and  fifty-five  dollars,  lawful  money 
of  the  United  States  of  America,  to  him  in  hand  paid  bv  the 
said  party  of  the  second  part,  the  receipt  whereof  is  herebv  ac- 
knowledged, does  by  these  presents  grant,  bargain,  sell,  convev, 
remise,  release  and  forever  quitclaim,  unto  the  said  partv  of 
the  second  part,  and  to  his  heirs  and  assigns,  all  the  right,  title, 
interest,  estate,  claim  and  demand,  both  at  law  and  in  equity, 
and  as  well  in  possession  as  in  expectancy,  of  tlie  said  party 
of  the  first  part,  of,  in,  and  to  all  that  certain  lot  and  parcel  of 
land,  situate  in  the  city  and  count)'  of  San  Francisco,  state  of 
California,  and  bounded  and  described  as  follows,  to  wit:  [De- 
scription.] 


2o6  New  Book  of  Forms. 

Together  with  all  and  singular  the  tenements,  hereditaments 
and  appurtenances  thereunto  belonging,  or  in  anywise  appertain- 
ing, and  the  rents,  issues,  and  profits  thereof. 

To  have  and  to  hold,  all  and  singular  the  said  premises,  to- 
gether with  the  appurtenances,  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns  forever. 

No.  253. — Deed  of  Right  of  Way. 

Whereas,  certain  of  the  inhabitants  of  road  district  number 
three  of  San  Mateo  county,  taxable  therein  for  road  purposes, 
have  petitioned  in  writing  the  Board  of  Supervisors  [or,  com- 
missioners of  highways,  as  the  case  may  be]  of  said  San  Mateo 
county,  to  lay  out  a  new  road  therein,  as  set  forth  in  their  peti- 
tion, dated  the  fourth  day  of  April,  ipoj,  which  said  road  is 
proposed  to  be  located  as  follows,  to  wit:  [Description.] 

Now,  therefore,  in  consideration  of  the  location  and  establish- 
ment of  said  road,  as  above  described,  and  of  the  benefits  to 
accrue  to  us  and  each  of  us  by  such  location,  we,  the  under- 
signed, owners,  occupants  and  claimants  of  land  required  for 
road  purposes  on  the  line  of  the  foregoing  designated  route, 
hereby  signify  our  approval  of  the  location  of  said  road,  and  do 
hereby  consent  thereto ;  and  we  do  hereby  grant  and  dedicate 
the  lands  belonging  to  us  and  each  of  us,  so  far  as  the  same 
may  be  required  for  such  road,  to  said  county  of  San  Mateo, 
to  that  purpose  and  for  the  use  of  such  road;  and  we  hereby 
waive  all  claims  for  damage  for  and  on  account  of  the  same. 

No.  254. — Sheriff's  Deed  on  Execution. 

This  Indenture,  made  this  tzvcnty-fourth  day  of  August, 
1^05,  between  P.  J.  W.,  sheriflf  of  the  city  and  county  of  San 
Francisco,  state  of  California,  of  the  first  part,  and  /.  D.,  of  the 
city  and  county  of  San  Francisco,  state  of  California,  the  party 
of  the  second  part: 

Whereas,  by  virtue  of  a  writ  of  execution  issued  out  of,  and 
under  the  seal  of  the  superior  court  of  the  said  city  and  county, 
tested  the  fourth  day  of  January,  ipoj,  upon  a  judgment  recov- 
ered in  said  court,  on  the  second  day  of  January,  ipoj,  in  favor 
of  G.  W.  and  against  /.  C,  to  the  said  sheriff  directed  and  deliv- 
ered, commanding  him  that  of  the  personal  property  of  the  said 
judgment  debtor,  /.  C,  in  his  county,  he  should  cause  to  be 
made  certain  moneys  in  the  said  writ  specified,  and  if  sufificient 
personal  property  of  the  said  judgment  debtor,  /.  C.,  coaild  not 
be  found,  that  then  he  should  cause  the  amount  of  said  judg- 
ment to  be  made  of  the  lands,  tenements  and  real  property  be- 
longing to  said  judgment  debtor,  /.  D.,  on  the  second  day  of 
January,  1905,  or  at  any  time  afterward ;  and  whereas,  because 
sufificient  personal  property  of  the  said  judgment  debtor,  /.  D., 
could  not  be   found,  whereof  he,  the  said  sheriff,   could  cause 


Deeds — Grants — Conveyances.  207 

to  be  made  the  moneys  specified  in  said  writ,  he,  the  said  sheriff, 
did,  m  obedience  to  said  command,  levy  on,  take,  and  seize  all 
the  estate,  right,  title,  and  interest,  which  the  said  judgment 
debtor,  /.  D.,  so  had,  of,  in,  and  to  the  lands,  tenements,  real 
estate  and  premises  hereinafter  particularly  set  forth  and  de- 
scribed, with  the  appurtenances,  and  did,  on  the  thirtieth  day 
of  January,  7905,  sell  the  said  premises,  at  public  vendue,  in 
front  of  the  City  Hall,  in  the  city  and  county  of  San  Francisco, 
between  the  hours  of  nine  in  the  morning  and  five  in  the  after- 
noon of  that  day,  namely,  at  twelve  o'clock,  after  having  first 
given  notice  of  the  time  and  place  of  such  sale,  by  advertising 
the  same  according  to  law ;  at  which  sale  the  said  premises  were 
struck  off  and  sold  to  the  said  party  of  the  second  part,  for  the 
sum  of  ten  thousand  dollars,  gold  coin  of  the  United  States,  the 
said  party  of  the  second  part  being  the  highest  bidder,  and  that 
being  the  highest  sum  bidden,  and  the  whole  price  paid  for  the 
sajne ;  and  whereas,  the  said  sheriff,  after  receiving  from  said 
purchaser  the  said  sum  of  money  so  bidden  as  aforesaid,  gave 
to  the  said  party  of  the  second  part  such  certificate  as  is  by  law 
directed  to  be  given,  and  filed  and  recorded  in  the  office  of  the 
county  recorder  of  the  city  and  county  of  San  Francisco,  a  dupli- 
cate of  such  certificate ;  and  whereas,  six  months  after  such  sale 
have  expired  without  any  redemption  of  the  said  premises  havang 
been  made:   [Recite  assignment  here,  if  any.] 

Now,  this  indenture  witnesseth,  that  P.  J.  W.,  sheriff  aforesaid 
and  party  hereto,  of  the  first  part,  by  virtue  of  the  said  writ  and 
in  pursuance  of  the  statute  in  such  case  made  and  provided,  for 
and  in  consideration  of  the  sum  of  money  above  mentioned,  to 
him  in  liand  paid  as  aforesaid  by  the  said  party  of  the  second 
part,  the  receipt  whereof  is  hereby  acknowledged,  haih  granted, 
bargained,  sold,  conveyed  and  confirmed,  and  by  these  presents 
doth  grant,  bargain,  sell,  convey  and  confirm  unto  the  said  party 
of  the  second  part,  and  to  his  heirs  and  assigns,  all  the  estate, 
right,  title  and  interest  which  the  said  judgment  debtor,  the  said 
/.  C,  had  on  the  second  day  of  January,  1905,  or  at  any  time 
afterward,  or  now  has  of,  in  and  to  all  the  following  described 
premises,  situate,  lying  and  being  in  the  city  and  county  of  San 
Francisco,  \\z.:  [Description.] 

Together  with  all  and  singular  the  tenements,  hereditaments 
and  appurtenances  thereunto  belonging  or  in  anywise  appertain- 

To  have  and  to  hold  the  said  premises,  with  the  appurtenances, 
unto  the  said  party  of  the  second  part,  his  heirs  and  assigns 
forever,  as  fully  and  absolutely  as  he,  the  sheriff  aforesaid,  can, 
may,  or  ought  to,  by  virtue  of  the  said  writ  and  of  the  statute 
in  such  case  made  and  provided,  grant,  bargain,  sell,  release, 
consign,  convey  and  confirm  the  same. 


2o8  New  Book  of  Forms. 


No.   255. — Sheriff's  Deed  on  Foreclosure. 

This  Indenture,  made  this  tzventy-sccond  day  of  Aus;^st, 
.IQO^,  between  P.  H.,  sheriff  of  the  city  and  county  of  San  Fran- 
cisco, of  the  first  part,  and  /.  D.,  of  the  city  and  county  of  San 
Francisco,  of  the  second  part,  witnesseth : 

Whereas,  in  and  by  certain  judgment  or  decree  rendered  by 
the  superior  court  of  the  city  and  county  of  San  Francisco,  state 
of  California,  on  the  tenth  day  of  April,  ipoj,  and  entered  on 
the  twelfth  day  of  April,  ipo^,  in  a  certain  action  then  pending 
in  said  court,  wherein  /.  /.  zvas  plaintiff,  and  P.  S.,  R.  R.,  B.  S. 
and  J.  S.  were  defendants,  and  of  which  said  judgment  or  de- 
cree a  certified  copy  was  dehvered  to  said  party  of  the  first  part, 
as  such  sheriff,  for  execution,  it  was,  among  other  things,  or- 
dered, adjudged  and  decreed,  that  all  and  singular  the  mort- 
gaged premises  described  in  the  complaint  in  said  action,  and 
specifically  described  in  said  judgment  or  decree,  be  sold  at  pub- 
lic auction  by  the  sheriff  of  the  city  and  county  of  San  Francisco, 
in  the  manner  required  by  law,  and  according  to  the  course  and 
practice  of  said  court;  that  such  sale  be  made  in  front  of  the 
City  Hall,  in  the  city  and  county  of  San  Francisco,  between  the 
hours  of  nine  o'clock  in  the  forenoon  and  five  o'clock  in  the  after- 
noon, on  such  day  as  the  said  sheriff  shall  appoint;  that  any  of 
the  parties  to  said  action  might  become  the  purchaser  at  such 
sale;  and  that  said  sheriff  execute  the  usual  certificates  and  deeds 
to  the  purchaser,  as  required  by  law ; 

And  whereas,  the  said  sheriff  did,  at  the  hour  of  twelve  o'clock, 
noon,  on  the  second  day  of  February,  ipoj,  after  due  public  no- 
tice had  been  given,  as  required  by  the  laws  of  this  state,  and 
the  course  and  practice  of  said  court,  duly  sell  at  public  auction, 
in  front  of  the  City  Hall,  in  the  city  and  county  of  San  Francisco, 
agreeably  to  the  said  judgment  or  decree,  and  the  provisions  of 
law,  the  premises  in  the  said  decree  or  judgment  mentioned;  at 
which  sale  the  premises  in  said  judgment  or  decree,  and  herein- 
after described,  were  fairly  struck  off  to  the  said  J.  D.,  the  said 
party  hereto  of  the  second  part,  for  the  sum  of  Hve  thousand 
dollars,  gold  coin  of  the  United  States,  he  being  the  highest 
bidder,  and  that  being  the  highest  sum  bidden  for  the  same ; 

And  whereas,  the  said  party  of  the  second  part  thereupon  paid 
to  the  said  sheriff  the  said  sum  of  money  so  bidden  by  him ; 

And  whereas,  the  said  sheriff  thereupon  made  and  issued  the 
usual  certificate,  in  duplicate,  of  the  said  sale,  in  due  fonn  of  law, 
and  delivered  one  thereof  to  the  said  purchaser,  and  caused  the 
other  to  be  filed  and  recorded  in  the  county  recorder's  office  of 
the  city  and  county  of  San  Francisco; 

And  whereas,  more  than  six  months  have  elapsed  since  the 
date  of  said  sale,  ana  no  redemption  has  been  made  of  the  prem- 


Deeds — Grants — CoNvirYANces.  209 

Jses  so  sold,  as  aforesaid,  by  or  on  behalf  of  the  said  judgment 
debtors,  the  said  defendants,  or  by  or  on  behalf  of  any  other 
person:   [Recite  assigfnment  here.] 

Now,  this  indenture  witnesseth,  that  the  said  partry-  of  the  first 
part,  the  said  P.  H.,  sheriff,  in  order  to  carry  into  eiTect  the  sale 
so  made  by  him  as  aforesaid,  in  pursuance  of  said  judgment  or 
decree,  and  in  conformity  to  the  statute  in  such  case  made  and 
provided,  and  also,  in  consideration  of  the  premises  and  of  the 
said  sum  of  Hvc  thousand  dollars,  gold  coin  of  the  United  States, 
so  bidden  and  paid  to  him  by  the  said  purchaser,  the  said  /.  D., 
the  receipt  whereof  is  hereby  acknowledged,  hath  granted,  bar- 
gained, sold  and  conveyed,  and  by  these  presents  doth  grant,  bar- 
gain, sell,  and  convey  unto  the  said  party  of  the  second  part,  and 
to  his  heirs  and  assigns  forever:   [Description.] 

Together  with  all  and  singular  the  tenements,  hereditaments, 
and  appurtenances  thereunto  belonging,  or  in  any  wise  appertain- 
ing, and  the  reversion  and  reversions,  remainder  and  remainders, 
rents,  issues,  and  profits  thereof. 

To  have  and  to  hold,  all  and  singular,  the  premises  above  men- 
tioned and  described,  and  hereby  conveyed,  or  intended  so  to  be, 
together  with  the  appurtenances,  unto  the  said  party  of  the  sec- 
ond part,  his  heirs  and  assigns  forever. 

No.  256. — Tax  Deed. 
No.  237, — ^Block  ^64- — Page  67- — Sub.  464.  "Vol.  5 — Page  7^.* 

Conveyance  of  Real  Estate,  for  Delinquent  Taxes  of  1904-05. 

This  Indenture,  made  and  entered  into  this  twentieth  day  of 
September,  in  the  year  of  our  Lord,  one  thousand  nine  hundred 
and  five,  between  G.  W.  G.,  tax  collector  of  the  county  of  San 
Mateo,  state  of  California,  party  hereto  of  the  first  part,  and  W. 
J.,  of  the  same  place,  party  hereto  of  the  second  part,  witnesseth: 

That  whereas,  I,  G.  W.  G.,  heretofore,  and  at  the  time  of  the 
levy  and  publication  hereinafter  mentioned,  was  tax  collector  of 
the  county  of  San  Mateo,  and  by  virtue  of,  and  in  conformity 
with,  chapter  VII,  title  IX  of  part  III  of  the  "Political  Code  of 
the  State  of  California,"  approved  March  12,  1872,  and  put  into 
effect  by  an  act  of  the  legislature  of  the  state  of  California, 
entitled  "An  act  to  put  into  immediate  effect  certain  parts  of  the 
Polifical  and  Penal  Codes,"  approved  March  16,  1872,  and  all 
acts  amendatory  thereof  or  supplementary  thereto,  did  on  the 
third  Monday  in  January,  iQOj,  deliver  to  the  Auditor  of  said 
county  a  complete  "Delinquent  List,"  of  all  persons  and  property 
then  owing  taxes  in  said  county  to  the  state  of  California  and  to 


•Such   reference   to   books,    etc.,   is   for   convenience   in   tracing    title, 
there  being  separate  books,  etc.,  for  each  year. 
New  Forms — 14 


2IO  New  Book  of"  Forms. 

the  county  of  San  Mateo,  together  with  the  costs  and  charges 
due  thereon ;  which  said  "Delinquent  List"  did  include  the  prop- 
erty first  hereinafter  described  in  this  certificate.  That  the  said 
property  was  assessed  for  the  fiscal  year  ending  June  30,  ipo^, 
for  state  and  county  taxes,  at  $10,050.00,  to  Mary  Muggins  [or 
if  the  owner  is  not  known,  to  all  unknown  owners  or  claimants^  ; 
that  the  property  assessed,  levied  upon,  and  advertised,  situate, 
lying  and  being  within  the  county  of  San  Mateo,  and  described 
thus:  Lot  commencing  on  the  northwest  line  of  Mission  street, 
150  feet  northeast  from  New  Anthony  street;  thence  running 
northeast  48  feet;  thence  northwest  100  feet;  thence  southwest  48 
feet,  and  thence  southeast  100  feet,  to  the  point  of  beginning;  was 
by  me,  the  tax  collector  as  aforesaid,  on  the  fourth  day  of  March, 
igoj,  in  accordance  with  law,  offered  for  sale,  to  pay  said  taxes, 
with  the  costs  and  charges  due  thereon,  at  public  auction,  in  front 
of  the  county  courthouse  in  said  county ;  that  at  said  auction  /.  Y. 
B.  zvas  the  bidder  who  was  willing  to  take  the  least  quantity  of,  or 
smallest  portion  of  the  interest  in,  said  land,  and  pay  the  taxes, 
costs,  and  charges  due  thereon ;  which  taxes,  costs,  and  charges, 
including  two  dollars  for  certificate  of  sale,  amounted  to  one  hun- 
dred and  sez'enty-one  dollars  and  thirty-four  cents  ($iyi.^4) ;  that 
the  said  least  quantity  of,  or  smallest  portion  of  the  interest  in, 
said  land,  lying  and  being  within  the  county  of  San  Mateo,  as  is 
hereinafter  described,  to  wit :  The  lot  of  land  commencing  on  the 
northzvest  line  of  Mission  street  at  a  point  distant  one  hundred 
and  -fifty  (130)  feet  northeasterly  from  Nezv  Anthony  street; 
thence  running  northeasterly  on  the  northwesterly  line  of  Mission 
street  forty-eight  (48)  feet;  thence  at  right  angles  northzvesterly 
one  hundred  (100)  feet;  thence  at  right  angles  southzvesterly 
forty-eight  (48)  feet,  and  thence  at  right  angles  southeasterly  one 
hundred  (100)  feet  to  the  point  of  beginning,  was,  by  me,  G.  IV. 
G.,  tax  collector  as  aforesaid,  struck  off  to  the  said  /.  Y.  B.,  who 
paid  the  full  amount  of  said  taxes,  costs  and  charge,  and  there- 
fore became  the  purchaser  of  the  last  described  piece  or  parcel 
of  land  so  sold  for  said  taxes  as  aforesaid ;  that  the  said  real 
estate  was  sold  subject  to  redemption,  pursuant  to  the  statute  in 
such  cases  made  and  provided ;  and  whereas,  no  person  has  re- 
deemed the  property  aforesaid  during  the  time  allowed  by  law 
for  its  redemption,  and  stated  in  the  certificate  of  sale  therefor. 

And  whereas,  the  said  J.  Y.  B.  has  duly  assigned  his  certitfcate 
Df  sale,  and  all  his  rights  thereunder,  unto  the  said  party  of  the 
second  part,  as  appears  from  said  certificate  of  sale  and  assign- 
ment thereof,  nozv  on  file  in  the  tax  collector's  ofkce  in  said 
county. 

Now,  therefore,  this  indenture  witnesseth,  that,  for  and  in  con- 
sideration of  the  sum  of  one  hundred  and  seventy-one  dollars  and 
ihirtv-four  cents  ($171.^4),  to  me  in  hand  paid,  the  receipt  where- 


Di:  KDS — Grants — Conveyances.  21 1 

of  is  hereby  acknowledged,  I,  G.  W.  G.,  tax  collector,  as  afore- 
said, by  virtue  and  in  pursuance  of  the  statutes  in  such  cases 
made  and  provided,  have  granted,  bargained,  sold,  conveyed,  and 
confirmed,  and  by  these  presents  do  grant,  bargain,  sell,' convey, 
and  confirm  unto  the  aforesaid  W.  J.,  and  to  his  heirs  and  assigns 
forever,  all  that  lot,  piece,  or  parcel  of  land  so  sold,  and  herein- 
before and  last  described  in  this  deed,  as  fully  and  absolutely 
as  I,  G.  W.  G.,  tax  collector,  as  aforesaid,  may  or  can  lawfully 
sell  and  convey  the  same;  together  with  all  and  singular  the 
tenements,  hereditaments  and  appurtenances  thereunto  belong- 
ing, or  in  anywise  appertaining,  of  the  said  M.  M.,  and  of  all 
owners  and  claimants  thereof,  known  and  unknown,  in  or  to 
the  said  last  above-described  premises,  and  every  part  and  par- 
cel thereof,  with  the  appurtenances,  which  she  or  they,  or  either 
of  them,  had  or  possessed  on  the  day  of  said  levy  or  assessment. 
To  have  and  to  hold,  all  and  singular,  the  hereinbefore  and 
last-mentioned  and  described  premises,  together  with  the  appur- 
tenances thereof,  unto  W.  J.,  the  said  party  of  the  second  part, 
and  his  heirs  and  assigns  forever. 

NOTE.— In  California,  under  the  act  of  1895.  all  delinquent  property 
is  bid  in  by  the  state,  and  this  form  of  deed  is  not  used. 

No,    257. — Deed — Warranty   Against    Grantor. 

This  Indenture,  made  the  seventh  day  of  January,  IQ0§,  be- 
tween C.  R.,  of  the  county  of  Mendocino,  state  of  California,  the 
party  of  the  first  part,  and  A.  H.  B.,  of  the  city  and  county  of 
Sacramento,  state  of  California,  the  party  of  the  second  part, 
witnesseth. 

That  the  said  party  of  the  first  part,  for  and  in  consideration 
of  the  sum  of  eight  hundred  and  ninety-six  dollars,  gold  coin  of 
the  United  States  of  America,  to  her  in  hand  paidby  the  said 
party  of  the  second  part,  the  receipt  whereof  is  hereby  acknowl- 
edged, does  by  these  presents,  grant,  bargain,  sell,  alien,  convey, 
and  confirm,  unto  the  said  party  of  the  second  part,  and  to  his 
heirs  and  assigns  forever,  all    [description]. 

Together  with  all  and  singular  the  tenements,  hereditaments 
and  appurtenances  thereunto  belonging,  or  in  anywise  appertain- 
ing and  the  rents,  issues,  and  profits  thereof. 

To  have  and  to  hold,  all  and  singular  the  said  premises,  to- 
gether with  the  appurtenances,  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns  forever ;  and  the  said  party  of  the  first 
part,  for  herself  and  her  heirs,  executors,  and  administrators, 
does  hereby  covenant  and  agree  to  and  with  the  said  partv  of 
the  second  part,  his  heirs,  and  assigns,  that  she  has  not  made, 
done,  committed,  executed  or  suflfered  any  act  or  acts,  thing  or 
things  whatsoever,  whereby,  or  by  means  whereof,  the  said  prem- 
ises, or  any  part  or  parcel  thereof,  now  are,  or  at  any  time  here- 


212  New  Book  of  Forms. 

after  shall,  or  may  be  impeached,  charged,   or  encumbered,   in 
any  manner  or  way  whatsoever. 

No.  258. — Deed — Warranty  Against  Grantor. 

This  Indenture,  made  the  eighth  day  of  April,  in  the  year 
1905,  between  R.  S.  of  the  city  and  county  of  San  Francisco, 
state  of  California,  the  party  of  the  first  part,  and  T.  R.,  of  the 
same  place,  the  party  of  the  second  part,  witnesseth : 

That  the  said  party  of  the  first  part,  for  and  in  consideration 
of  the  sura  of  two  thousand  two  hundred  and  fifty  dollars,  gold 
coin  of  the  United  States  of  America,  to  him  in  hand  paid  by  the 
said  party  of  the  second  part,  the  receipt  whereof  is  hereby  ac- 
knowledged, does,  by  these  presents,  grant,  bargain,  sell,  con- 
vey, and  confirm  unto  the  party  of  the  second  part,  and  to  his 
heirs  and  assigns  forever,  all  that  certain  lot,  piece,  or  parcel  of 
land  situate  in  the  city  and  county  of  San  Francisco,  state  of 
California,  bounded  and  described  as  follows,  to  wit:  [Descrip- 
tion.] 

Together  with  all  and  singular  the  tenements,  hereditaments 
and  appurtenances  thereunto  belonging,  or  in  anywise  appertain- 
ing, and  the  rents,  issues,  and  profits  thereof. 

To  have  and  to  hold,  all  and  singular  the  said  premises,  to- 
gether with  the  appurtenances,  unto  the  said  party  of  the  second 
part,  and  to  his  heirs  and  assigns  forever.  And  the  said  party 
of  the  first  part,  for  himself  and  his  heirs,  executors,  and  admin- 
istrators, does  hereby  covenant  and  agree  to  and  with  the  said 
party  of  the  second  part,  his  heirs,  executors,  administrators  and 
assigns,  that  he  has  not  made,  done,  committed,  executed  or  suf- 
fered any  act  or  acts,  thing  or  things  whatsoever,  whereby  or  by 
means  whereof  the  said  premises,  or  any  part  or  parcel  thereof, 
now  are,  or  at  any  time  hereafter  shall,  or  may,  be  impeached, 
charged,  or  encumbered  in  any  manner  or  way  whatsoever. 

No.  259. — Warranty  Deed. 

This  Indenture,  made  the  fourteenth  day  of  April,  in  the 
year  of  our  Lord  190^,  between  /.  W.,  of  Monterey,  county  of 
Monterey,  state  of  California,  the  party  of  the  first  part,  and  G. 
W.,  of  the  same  place,  the  party  of  the  second  part,  witnesseth: 

That  the  said  party  of  the  first  part,  for  and  in  consideration 
of  the  sum  of  two  thousand  six  hundred  dollars,  gold  coin  of  the 
United  States  of  America,  to  him  in  hand  paid,  by  the  said  party 
of  the  second  part,  the  receipt  whereof  is  hereby  acknowledged, 
does  by  these  presents  grant,  bargain,  sell,  convey  and  confirm 
unto  the  said  party  of  the  second  part,  and  to  his  heirs  and  as- 
signs forever:  [Description.] 


De^ds — Grants — Conveyances.  213 

Tog-ether  with  all  and  sing-ular  the  tenements,  hereditaments 
and  appurtenances  thereunto  bclonj^ing-,  or  in  any  wise  appertain- 
ing, and  the  rents,  issues  and  profits  thereof. 

To  have  and  to  hold,  all  and  sing-ular,  the  above-mentioned  and 
described  premises,  together  with  the  appurtenances,  unto  the 
said  party  of  the  second  part,  and  to  his  heirs  and  assigns  for- 
ever. And  the  said  party  of  the  first  part,  and  his  heirs,  the 
said  premises,  in  the  quiet  and  peaceable  possession  of  the  said 
party  of  the  second  part,  his  heirs  and  assigns,  against  the  said 
party  of  the  first  part,  and  his  heirs,  and  against  all  and  every 
l)erson  and  persons  whomsoever,  lawfully  claiming  or  to  claim 
the  same,  shall  and  will  warrant,  and  by  these  presents  forever 
defend. 

No.  260. — Warranty  Deed  by  Attorney — Full  Covenants. 

This  Indenture,  made  the  seventh  day  of  January,  jpofi,  be- 
tween W.  B.  L.,  of  lozva  Hill,  county  of  Placer,  state  of  Califor- 
nia, and  W.  S.,  of  Auburn,  county  aforesaid,  by  their  attornev 
in  fact,  D.  D.  S.,  the  parties  of  the  first  part,  and  £.  A.  P.,  of 
Forest  Hill,  county  aforesaid,  and  T.  J.,  of  Poverty  Bar,  county 
aforesaid,   the   parties   of   the    second   part,    witnesseth : 

That  the  said  parties  of  the  first  part,  for  and  in  consideration 
of  the  sum  of  five  thousand  six  hundred  and  eight  dollars,  ^old 
coin  of  the  United  States  of  America,  to  them  in  hand  paid  by 
the  said  parties  of  the  second  part,  at  or  before  ensealing  and  de- 
livery of  these  presents,  the  receipt  whereof  is  hereby  acknowl- 
edged, have  granted,  bargained,  sold,  aliened,  conveyed  and  con- 
firmed, and  by  these  presents  do  grant,  bargain,  sell,  alien,  convey 
and  confirm  unto  the  said  parties  of  the  second  part,  and  to 
their  heirs  and  assigns   forever.    [Description.] 

Together  with  all  and  singular  the  tenements,  hereditaments 
and  appurtenances  thereunto  belonging,  or  in  anywise  appertain- 
ing, and  the  reversion  and  reversions,  remainder  and  remainders, 
rents,  issues  and  profits  thereof. 

To  have  and  to  hold,  all  and  singular,  the  above  granted  and 
described  premises,  with  the  appurtenances,  unto  the  "said  parties 
of  the  second  part,  their  heirs  and  assigns  forever. 

And  the  said  parties  of  the  first  part,  for  their  heirs,  execu- 
tors, and  administrators,  do  covenant,  grant  and  a"-ree'  to  and 
with  the  said  parties  of  the  second  part,  their  heirs  and  assigns, 
tliat  the  said  parties  of  the  first  part,  at  the  time  of  the  seatinc^ 
and  delivery  of  these  presents,  are  lawfully  seised  in  fee  simple 
absolute  of  and  in  all  and  singular  the  above  granted  and  de- 
scribed premises,  with  the  appurtenances,  and  have  good  ri"-ht, 
full  power,  and  lawful  authority  to  grant,  bargain,  sell  and  con- 
vey the  same,  in  manner  aforesaid  ;  and  that  the  said  parties  of 
tlie  second  part,  tlieir  heirs  and  assigns,  shall  and  mav,  at  all 


214  New  Book  of  Forms. 

times  hereafter,  peaceably  and  quietly  have,  hold,  use,  occupy, 
possess,  and  enjoy  the  above-granted  premises,  and  every  part 
and  parcel  thereof,  with  the  appurtenances,  without  any  let,  suit, 
trouble,  molestation,  eviction  or  disturbance  of  the  said  parties 
of  the  first  part,  their  heirs  and  assigns,  or  of  any  other  person 
or  persons  lawfully  claiming  or  to  claim  the  same;  and  that  the 
same  now  are  free,  clear,  discharged,  and  unencumbered  of  and 
from  all  former  and  other  grants,  titles,  charges,  estates,  judg- 
ments, taxes,  assessments  and  encumbrances,  of  what  nature 
or  kind  soever. 

And,  also,  that  the  said  parties  of  the  first  part,  and  their 
heirs,  and  all  and  every  person  or  persons  whomsoever,  lawfully 
or  equitably  deriving  any  estate,  right,  title,  or  interest,  of,  in 
or  to  the  hereinbefore  granted  premises,  by,  from,  under  or  in 
trust  for  them  shall  and  will,  at  any  time  or  times  hereafter, 
upon  the  reasonable  request,  and  at  the  proper  costs  and  charges 
in  the  law,  of  the  said  parties  of  the  second  part,  their  heirs 
and  assigns,  make,  do,  and  execute,  or  cause  to  be  made,  done, 
and  executed,  all  and  every  such  further  and  other  lawful  and 
reasonable  acts,  conveyances,  and  assurances,  in  the  law,  for 
the  better  and  more  effectually  vesting  and  confirming  the  prem- 
ises, hereby  granted,  or  so  intended  to  be,  in  and  to  the  said 
parties  of  the  second  part,  their  heirs  and  assigns  forever,  as  by 
the  said  parties  of  the  second  part,  their  heirs,  or  assigns,  or 
their  counsel  learned  in  the  law,  shall  be  reasonably  advised  or 
required;  and  the  said  parties  of  the  first  part,  their  heirs,  the 
above-described  premises,  and  every  part  and  parcel  thereof, 
with  the  appurtenances,  unto  the  said  parties  of  the  second  part, 
their  heirs  and  assigns,  against  the  said  parties  of  the  first  part, 
and  their  heirs  and  against  all  and  every  person  and  persons 
whomsoever,  lawfully  claiming  or  to  claim  the  same,  shall  and 
will  warrant,  and  by  these  presents  forever  defend. 

No,  261. — Deed — Bargain  and  Sale. 

This  Indenture,  made  the  twenty-third  day  of  February, 
1905,  between  IV.  S.,  of  the  state  of  Nevada,  the  party  of  the 
first  part,  and  W.  C.  R.,  of  the  city  and  county  of  San  Francisco, 
state  of  California,  the  party  of  the  second  part,  witnesseth: 

That  the  said  party  of  the  first  part,  for  and  in  consideration 
of  the  sum  of  one  hundred  thousand  (100,000)  dollars,  gold  coin 
of  the  United  States  of  America,  to  him  in  hand  paid  by  the 
said  party  of  the  second  part,  the  receipt  whereof  is  hereby 
acknowledged,  has  granted,  bargained,  sold  and  conveyed,  and 
by  these  presents  does  grant,  bargain,  sell  and  convey  unto  the 
said  party  of  the  second  part,  and  to  his  heirs  and  assigns  for- 
ever, all  that  certain  lot,  piece,  or  parcel  of  land  situate,  lying, 
and  being  in  the  city  and  county  of  San  Francisco,  state  of  Cali- 


Deejds — Grants — Conveyances.  215 

fornia,  and  bounded  and  particularly  described  as  follows,  to 
wit:   [Description.] 

Together  with  all  and  singular  the  tenements,  hereditaments 
and  appurtenances  thereunto  belonging,  or  in  anywise  appertain- 
ing, and  the  reversion  and  reversions,  remainder  and  remainders, 
rents,  issues,  and  profits  thereof. 

To  have  and  to  hold,  all  and  singular  the  above-mentioned  and 
described  premises,  together  with  the  appurtenances,  unto  the 
said  party  of  the  second  part,  his  heirs  and  assigns  forever. 

No.  262. — Deed — Civil  Code — Warranty. 

I,  7.  B.,  of  the  first  part,  grant  to  C.  S.,  of  the  second  part,  all 
that  real  property  situated  in  Sierra  county,  state  of  California, 
bounded  and  described  as  follows:    [Description.] 

The  party  of  the  first  part  covenants  with  the  party  of  the  sec- 
ond part,  that  the  former  is  now  seised  in  fee  simple  of  the  prop- 
erty granted;  that  the  latter  shall  enjoy  the  same  without  any 
lawful  disturbance ;  that  the  same  is  free  from  all  encumbrances ; 
that  the  party  of  the  first  part,  and  all  persons  acquiring  any  in- 
terest in  the  same  through  or  for  him,  will,  on  demand,  execute 
and  deliver  to  the  party  of  the  second  part,  and  at  the  expense 
of  the  latter,  any  further  assurance  of  the  same  that  may  be  rea- 
sonably required,  and  that  the  party  of  the  first  part  will  war- 
rant to  the  party  of  the  second  part  all  the  said  property  against 
every  person  lawfully  claiming  the  same. 

To  have  and  to  hold  the  above  granted  and  described  prem- 
ises unto  said  C.  S.,  his  heirs  and  assigns  forever. 

No.  263.— -Deed— Trust— Notice  Under,  of  Trustee's  Sale. 

Whereas,  7.  L.,  of  the  county  of  Kings,  state  of  California,  did 
execute  a  certain  deed  of  trust  bearing  date  the  seventh  day  of 
March,  igo2,  to  B.  A.  B.,  and  G.  T.,  as  trustees,  for  the  benefit 
and  security  of  The  G.  S.  and  L.  Society,  a  corporation,  which 
deed  of  trust  was  recorded  in  the  office  of  the  county  recorder  o£ 
the  county  of  Kings,  state  of  California,  on  the  twenty-sixth  day 
of  Afyril,  igo2,  in  Liber  4  of  Trust  Deeds,  at  page  ^58. 

And  whereas,  the  said  B.  A.  B.  died  on  the  thirteenth  day  of 
7u/y,  1902,  and  said  G.  T.  then  became  the  sole  surviving  trustee 
under  said  deed  of  trust ; 

And  whereas,  default  has  been  made  by  the  said  7.  L.  in  the 
payment  of  the  promissory  notes  secured  by  said  deed  of  trust, 
and  the  board  of  directors  of  the  said  The  G.  S.  and  L.  Society 
did  on  the  tzventy-fourth  day  of  January,  lOOj,  by  resolution,  de- 
mand that  said  trustee,  G.  T.,  should  forthwith  proceed  to  sell 
the  lands  in  said  deed  of  trust  described ; 

Now,  therefore,  pursuant  to  the  said  resolution  and  in  accord- 
ance with  the  tenns  and  under  the  authority  of  the  said  deed  of 


2i6  New  Book  of  Forms. 

trust,  the  said  G.  T.,  as  such  trustee,  does  hereby  give  notice  that 
on  Thursday,  the  second  day  of  March,  ipo^,  at  the  hour  of  ten 
o'clock  in  the  forenoon  of  said  day,  at  the  main  entrance  to  the 
Hall  of  Justice,  on  Kearny  street,  in  the  city  and  county  of  San 
Francisco,  state  of  California,  he  will  sell  at  public  auction  to  the 
highest  bidder  for  cash  in  gold  coin  of  the  United  States,  all 
that  certain  piece,  parcel,  tract  and  lot  of  land  situate,  lying  and 
being  in  the  county  of  Kings,  state  of  California,  and  particularly 
described  as  follows,  to  wit:  [Description.] 


HOMESTEAD. 


Creation  of. — In  California  a  homestead  is  created  by  a  dec- 
laration in  writing  showing:  I.  That  the  person  making  it  is  the 
head  of  a  family,  and  the  name  of  the  spouse,  if  the  claimant  is 
married ;  or  when  it  is  made  by  his  wife,  showing  that  her  hus- 
band has  not  made  such  declaration,  and  that  she  therefore 
makes  it  for  their  joint  benefit;  2.  A  statement  that  the  person 
making  it  is  residing  on  the  premises  and  claims  them  as  a 
homestead ;  3.  A  description  of  the  premises ;  4.  An  estimate  of 
their  actual  cash  value:  C.  C.  P.,  sec.  1263.  A  husband  is  the 
head  of  a  family  when  he  is  married,  and  in  the  following  order 
every  person  who  is  residing  on  the  premises  with  him  or  her, 
and  under  his  or  her  care  and  maintenance:  i.  His  or  her  minor 
child  or  minor  grandchildren,  or  the  minor  child  of  his  or  her 
deceased  wife  or  husband ;  2.  A  minor  brother  or  sister,  or  the 
minor  child  of  a  deceased  brother  or  sister;  3.  A  father,  mother, 
grandfather  or  grandmother;  4.  The  father,  mother,  grand- 
father or  grandmother  of  a  deceased  husband  or  wife;  5.  An 
unmarried  sister  or  any  other  of  the  relatives  mentioned  of  legal 
age  and  who  are  unable  to  take  care  of  or  support  themselves: 
C.  C,  sec  1261. 

Who  may  Select. — The  husband  or  other  head  of  the  fam- 
ily, or  in  case  the  husband  has  not  made  a  selection,  the  wife 
must  execute  and  acknowledge  in  the  same  manner  as  a  grant  of 
real  property  is  acknowledged,  a  declaration  of  homestead  and 
file  the  same  for  record :  C.  C^  sec  1262. 

Value  of  Premises. — The  constitution  of  the  state  of  Cali- 
fornia provides  for  homesteads  by  article  17,  section  i.  The 
Civil  Code  fixes  the  value:  i.  Head  of  family,  not  exceeding 
five  thousand  dollars ;  2.  Any  other  person,  not  exceeding  one 
thousand  dollars.     The  declaration  must  state  an  estimate  of  the 


Homestead.  217 

actual  cash  value  of  the  premises:  Ames  v.  Eldred,  55  Cal.  136. 
There  are  many  other  cases  to  the  same  point,  and  it  appears 
to  make  no  difference  what  form  of  words  are  used  or  the  value 
placed  on  the  premises,  be  it  more  or  less  than  five  thousand 
dollars,  even  if  the  word  "cash"  is  omitted  before  the  word 
"value."  In  King  v.  Gotz,  70  Cal.  236,  the  value  was  placed 
at  seven  thousand  dollars:  C.  C,  sec  1266. 

Exemption  of. — It  is  exempt  from  execution  or  forced  sale 
except:  i.  To  satisfy  judgments  obtained  before. declaration  was 
filed  for  record,  which  judgments  are  liens  upon  the  premises; 
2.  On  debts  secured  by  liens  under  the  mechanic's  lien  law  and 
vendor's  liens  upon  the  premises ;  3.  On  debts  secured  by  mort- 
gages on  the  premises  executed  and  acknowledged  by  husband 
and  wife,  or  by  an  unmarried  claimant ;  4.  On  debts  secured  by 
mortgage  on  the  premises,  executed  and  recorded  before  the 
declaration  of  homestead  was  filed  for  record:  C.  C,  sees.  1240, 
1241. 

No.  264. — Homestead. 

Know  all  Men  by  these  Presents:  That  I  do  hereby  de- 
clare that  I  am  married.  That  my  husband's  name  is  /.  C.  P., 
and  that  I  do  now,  at  the  time  of  making  this  declaration,  actually 
reside  on  the  premises  hereinafter  described.  That  the  said 
premises  are  bounded  and  described  as  follows,  to  wit :  Lying 
and  being  in  the  county  of  Sacramento,  state  of  California,  and 
bounded  and  described  as  follows,  to  wit:  [Description.] 

That  I  do  by  these  presents  claim  the  premises  above  described, 
together  with  the  dwelling-house  thereon,  and  the  appurtenances, 
as  a  homestead. 

That  I  make  this  declaration  for  the  joint  benefit  of  myself 
and  husband,  and  I  declare  and  show  by  this  instrument  that 
my  husband  has  not  made  a  declaration  of  homestead. 

That  tlie  actual  cash  value  of  said  premises  I  estimate  to  be 
five  thousand  dollars. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal  this 
third  day  of  June,  one  tliousand  nine  hundred  and  five. 

Homesteads,  Generally. — It  is  the  home  where  the  family  perma- 
nently resides:  Cook  v.  McChristian,  4  Cal.  23.  That  case  was  decided 
in  the  days  of  California 's  judicial  innocence.  The  words  ' '  perma- 
nently reside"  are  redolent  of  home,  Christmas  trees  and  happiness  in 
old  family  residences,  not  capable  of  transfer  in  the  life  of  the  fam- 
ily. It  was  a  place  of  refuge.  Since  then  it  has  been  held,  and  is  ac- 
cepted as  sound  law,  that  a  homestead  is  the  home  were  the  family 
permanently  resides  until  it  moves  to  some  other  place:  Gaylord  v.  Place, 
9S  Cal.  472,  33  Pac.  484.  The  homestead  law  is  a  remedial  measure  and 
is  liberally  construed:  Heathman  v.  Holmes.  94  Cal.  291.  29  Pac.  404.  It 
is   intended   to   protect   the    home   of   the   family   against   creditors    and 


2i8  New  Book  of  Forms. 

against  disposition  or  encumbrance  bv  oiif  of  the  spouses:  Tromans  v. 
Mohlman,  92  Cal.  1,  27  Pac.  1094,  28  Pac.  579.  Section  1263  of  the  Civil 
Code  is  mandatory,  and  compliance  with  it  is  essential  to  the  validity 
of  the  homestead:  Ashley  v.  Olmstead,  54  Cal.  616;  Estate  of  Gallagher, 
134  Cal.  96,  66  Pac.  70.  The  right  e>rists  only  upon  compliance  with  the 
statute:  Tappendorff  v.  Moranda,  134  Cal.  419,  66  Pac.  491.  The  statute 
IS  to  be  liberally  construed,  and  if  the  essence  of  the  statutory  require- 
ments is  stated  in  the  declaration,  it  is  sufficient.  If  the  premises  are 
the  separate  property  of  the  wife,  her  acknowledgment  of  the  declaration 
establishes  the  fact  that  she  joins  in  it;  and  the  use  of  the  word  "we" 
Involves  a  statement  that  the  husband  and  wife  joined  in  it:  Simonson 
v.  Burr,  121  CaL  582,  54  Pac.  87;  Quackenbush  v.  Eeed,  102  CaL  493,  37 
Pac.  755. 

The  declaration  by  a  wife  must  contain  the  statement  that  her  hus- 
band has  not  made  one,  and  that  she  therefore  makes  the  declaration 
for  their  joint  benefit:  Cunha  v.  Hughes,  122  Cal.  Ill,  68  Am.  St.  Eep. 
27,  54  Pac.  535.  When  the  validity  of  the  homestead  is  attacked,  the 
truth  of  the  recitals  in  it  must  be  proven  by  evidence  outside  of  the 
statement  of  facts  in  the  declaration:  Apprate  v.  Paure,  121  Cal.  466, 
53  Pac.  917.  There  can  be  no  homestead  without  compliance  with  the 
homestead  law:  Bank  of  Woodlands  v.  Oberhaus,  125  CaL  320,  57  Pac 
1070. 

It  is  not  necessary  to  state  that  the  applicant  is  married;  the  state- 
ment that  he  is  the  head  of  a  family  is  the  ultimate  fact  to  be  stated. 
jSTor  is  it  necessary  to  state  who  are  the  members  of  his  family:  Secur- 
ity Loan  etc.  Co.  v.  Kauffman,  108  Cal.  214,  41  Pac.  467.  A  declaration 
need  not  state  the  facts  showing  (establishing  the  fact)  the  declarant  to 
be  the  head  of  a  family.  A  statement  in  it  that  he  is  the  head  is  suffi- 
cient: Jones  V.  Waddy,  66  Cal.  457,  6  Pac.  92.  A  declaration  is  invalid 
that  does  not  state  that  the  claimant  is  "the  head  of  a  family,"  and  is 
only  signed  by  the  initial  letters  of  the  Christian  names  of  the  claimant, 
B.  it  cannot  be  ascertained  from  the  signature  that  the  claimant  is  the 
husband:  Beid  v.  Englehart-Davidson  Mer.  Co.,  126  Cal.  527,  77  Am.  St. 
Eep.  206,  58  Pac.  1063. 

Only  One  Homestead  at  a  Tir-e. — A  person  cannot  have  two  home- 
steads; if  the  second  is  acquired  whi^.e  the  first  exists,  the  second  is  void: 
Waggle  V.  Worthy,  74  Cal.  266,  5  Am.  St.  Eep.  440,  15  Pac.  831.  It  has 
been  held  that  if  a  widow  to  whom  a  probate  court  sets  apart  a  home- 
stead marries,  and  her  husband  dies,  a  probate  court  may  set  apart  to 
her  a  second  homestead:  Higgins  v.  Higgins,  46  Cal.  259;  but  if  a  home- 
stead has  been  set  apart  to  a  spouse  out  of  the  common  property,  she  is 
not  entitled  to  a  second  homestead  out  of  her  deceased  husband's  separate 
esate:  Estate  of  Aekerman,  80  Cal.  208,  13  Am.  St.  Eep.  116,  22  Pac. 
141. 

Eesidcnce  on  Premises. — Both  actual  residence  on  the  premises  and  a 
declaration  in  form  sufficient  to  comply  with  the  statute  are  necessary, 
and  if  the  declaration  is  not  sufficient,  the  defect  cannot  be  supplied  by 
evidence:  Boreham  v.  Byrne,  83  Cal.  23,  23  Pac.  212.  The  physical  fact 
of  occupancy  of  the  premises  and  the  intention  with  which  they  were 
occupied  are  elements  to  be  considered  in  determining  the  fact  of  actual 
residence:  Tromans  v.  Mahlman,  111  Cal.  646,  4  Pac.  327. 

Wliat  Property  may  be  Taken  as. — The  homestead  consists  of  the 
dwelling-house  in  which  the  claimant  resides  and  the  land  on  which  the 
same  is  situated.  If  the  claimant  be  married  it  may  be  selected  from 
the  community  property,  or  the  separate  property  of  the  husband,  or, 
with  the  consent  of  the  wife,  from  her  separate  property.  A  wife  con- 
sents to   the   homestead  selection   when   she  joins  in   the   declaration  of 


Homestead.  219 

homestead:  C.  C.  P.,  sees.  1237-1239.  The  description  of  the  premises 
claimed  in  a  declaration  must  be  as  particular  as  is  required  in  a 
jrrant:  Schuler  v.  Brouphton,  76  Cal.  524,  18  Pac.  436.  The  principal 
use  to  which  the  property  is  put  is  the  test  in  determining  whether  it 
was  subject  to  homestead:  Matter  of  Allen,  78  Cal.  296,  20  Pac.  679. 
Quantity  is  unlimited,  but  the  value  governs:  Gregg  v.  Bostwick,  33  Cal. 
220,  91  Am.  Dec.  037;  cited,  6  Mont.  456,  13  Pac.  118.  13  Nev.  68.  It 
need  not  be  in  compact  form.  It  may  be  intersected  by  highways.  A 
homestead  represents  the  family  dwelling  place,  with  necessary  out- 
houses: Estate  of  Delancy,  37  Cal.  176;  cited,  62  Cal.  134,  49  Am.  Rep. 
83,  71  Cal.  304,  12  Pac.  230,  78  Cal.  474,  21  Pac.  116.  A  homestead  where 
the  dwelling  stands,  and  also  adjoining  land  used  in  connection  with  it 
as  a  garden,  and  for  family  water  supply,  was  upheld  in  Ardent  v.  Mace, 
76  Cal.  315,  9  Am.  St.  Eep.  207,  18  Pac.  376.  See,  also,  Englebrecht  v. 
Shade,  47  Cal.  627.  A  farm  of  several  fields  may  be  a  homestead:  Ken- 
nedy V.  Gloster,  98  Cal.  143,  32  Pac.  941;  Gregg  v.  Bostwick,  33  Cal.  220, 
91  Am.  Dec.  637. 

Business  Property  as. — Where  the  property  is  used  as  a  public  hotel, 
and  the  family  reside  there,  it  is  not  a  homestead  within  the  meaning 
of  the  law:  Laughlin  v.  Wright,  63  Cal.  113.  But  a  tract  of  one  hun- 
dred and  sixty  acres  and  a  building  on  it  was  intended  as  a  residence 
for  the  family,  and  the  nature  and  extent  of  the  hotel-keeping  in  the 
house  did  not  interfere  with,  the  general  character  of  the  premises,  and 
because  the  entire  property  was  not  worth  over  two  thousand  dollars, 
it  was  upheld  as  a  homestead:  Ackley  v.  Chamberlain,  16  Cal.  181,  76 
Am.  Dec.  516;  and  this  case  was  cited  and  approved  in  63  Cal.  117;  69 
Cal.  199,  10  Pac.  406;  71  Cal.  302,  12  Pac.  230;  75  Cal.  424,  7  Am.  St. 
Rep.  180,  17  Pac.  539,  78  Cal.  295,  20  Pac.  679,  94  Cal.  294,  29  Pac.  404. 
Pasturing  cattle  on  homestead  premises,  and  selling  hay  raised  on  the 
land,  when  there  was  more  than  the  family's  cattle  could  consume,  did 
not  invalidate  homestead:  Kennedy  v.  Gloster,  98  Cal.  143,  32  Pac.  941. 

Miner's  Cabin  and  Claim  as. — Under  section  690  of  the  California 
Code  of  Civil  Procedure,  the  cabin  and  dwelling  of  a  miner  and  a  min- 
ing claim  actually  worked  by  him,  not  exceeding  in  value  one  thousand 
dollars,  is  exempt  from  execution.  In  construing  said  section  it  was 
held  that  that  exemption  does  not  preclude  a  miner  from  selecting  the 
cabin  and  dwelling  and  claim  as  a  homestead  under  the  general  home- 
stead law.  It  was  also  said  that  it  is  not  necessary  that  a  homestead 
should  be  a  permanent  home.  The  fact  that  the  homestead  land  was  be- 
ing washed  away  to  extract  the  gold  it  contained  did  not  matter:  Gay- 
lurd  V.  Place,  98  Cal.  472,  33  Pac.  482.  As  to  the  claimant's  title  to 
the  premises  claimed,  whatever  claim  or  title  the  claimant  has  is  pn> 
tected  from  forced  sale:  Spencer  v.  Geissman,  37  Cal.  96,  99  Am.  Dec. 
248;  Alexander  v.  Jackson,  92  Cal.  514,  27  Am.  St.  Eep.  158,  28  Pac.  593. 

Land  Held  in  Common,  etc. — Commencing  vnth  Elias  v.  Virdugo,  27 
Cal.  418,  and  ending  with  Rosenthal  v.  Merced  Bank,  110  Cal.  198,  43 
I'ac.  640,  all  the  cases  hold  that  land  held  in  "cotenancy, "  "joint  ten- 
ancy,"  "tenancy  in  common,"   cannot  be   claimed  as   a  homestead. 

No.    265. — Declaration    of    Homestead — Husband. 

Know  all  Men  by  these  Presents:  That  I  do  hereby  de- 
clare that  I  am  married  and  the  head  of  a  family ;  that  my  wife's 
name  is  M.  J.  F.,  and  that  I  do  now,  at  the  time  of  makings  this 
declaration,  actually  reside  on  the  premises  hereinafter  described. 
That  my  family  consists  of  a  wife  and  three  children,     Tliat  tlie 


220  New  Book  of  Forms. 

premises  on  which  I  reside  are  bounded  and  described  as  fol- 
lows, to  wit :  Lying  and  being  in  the  county  of  Sacramento,  state 
of  California,  and  bounded  and  described  as  follows,  to  wit:  [De- 
scription.] 

That  I  do  by  these  presents  claim  the  premises  above  de- 
scribed, together  with  the  dwelling-house  thereon,  and  the  ap- 
purtenances, as  a  homestead.  That  the  actual  cash  value  of  said 
premises  I  estimate  to  be  five  thousand  dollars. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal 
this  third  day  of  June,  one  thousand  nine  hundred  and  five. 

NOTE.— California,   C.   C,   sees.    1237-1269. 

Alaska:  Must  not  exceed  $2,-500  in  value,  nor  exceed  one  hundred 
and  sixty  acres  of  land.  A  declaration  of  not  necessary.  If  in  lots 
or  blocks  of  a  town  or  city,  not  over  one-fourth  of  an  acre.  Declaration 
of  is  unnecessary.  It  is  a  matter  of  exemption  from  execution:  Codes, 
pt.  5,  e.  31,  sec.  372. 

Arizona:  Not  to  exceed  $2,500  in  value,  without  reference  to  quantity 
of  land.  A  declaration  of  is  not  necessary.  The  residence  may  be  on 
land  not  occupied  by  a  family.  Probate  homesteads  are  allowed:  C. 
C,  pars.  1732-1736,  2714-2724. 

Colorado:  Every  householder  who  is  the  head  of  a  family  is  entitled 
to  a  homestead,  to  the  extent  of  $2,000.  It  is  easy  there.  On  the  margin 
01  the  record  title  to  the  land  the  claimant  must  write  the  word  "home- 
stead,"  and  sign  the  marginal  entry,  and  the  clerk  and  county  recorder 
attests  the  same,  with  the  date.  It  is  only  exempt  while  occupied.  It 
may  consist  of  a  house  and  lot  or  lots  in  a  town  or  city  or  a  farm,  so 
that  the  value  does  not  exceed  $2,000.  The  excess  may  be  reached  by 
appraisement  and  execution.  It  descends  to  the  family:  Mill's  Stats., 
Bees.  2132-2136. 

Idaho,  C.  C,  sees.  2470-2501,  the  same  as  in  California. 

Montana:  The  same  as  in  California,  except  one  hundred  and  sixty 
acres  of  land  is  the  limit  when  used  for  agricultural  purposes  and  the 
dwelling-house  and  appurtenances  when  not  included  in  any  town  plat, 
eity  or  village.  If  in  a  city,  town  or  village,  one-fourth  of  an  acre  is 
the  limit,  but  in  no  case  must  it  exceed  in  value  $2,500;  C.  C,  sees. 
1670-1703. 

Nevada:  Substantially  the  same  as  in  California;  so  that  the  forms 
in  this  book  are  applicable  with  a  few  changes.  The  value  is  $5,000.  A 
declaration  and  recording  are  necessary:  Comp.  Laws,  sees.  550-558. 

New  Mexico:  The  same  as  in  Arizona  as  to  exemptions  to  the  extent 
of  $500.  Declaration  not  necessary:  Comp.  Laws,  sees.  1747-1752.  It 
is   exempt   from    taxation   to    the    extent    of    $200:    Laws    1901,    p.    186. 

North  Dakota:  The  same  substantially  as  in  California,  except  if 
within  a  town  plat,  it  must  not  exceed  two  acres,  and  if  not,  then  not 
to  exceed  one  hundred  and  sixty  acres:  C.  C,  sees.  3605-3638. 

Oregon:  It  is  a  matter  of  exemption  from  execution  to  the  extent  of 
$1,500.  It  must  not  extend  beyond  one  hundred  and  sixty  acres  in  the 
country.  If  located  in  a  city  or  town,  then  it  shall  not  exceed  one  block, 
nor  shall  a  homestead  be  reduced  to  less  than  twenty  acres  nor  one  lot, 
regardless  of  value:  Codes  and  Statutes,  sees.  221-228. 

South  Dakota:  It  must  embrace  the  house  used  as  a  home.  It  may 
contain  one  or  more  tracts  of  land  with  the  buildings.  If  in  a  town 
plat,  not  more  than  one  acre.  If  not,  then  it  must  not  exceed  one  hun- 
dred and  sixty  acres.  If  upon  mineral  lands  acquired  from  the  United 
States,  then  not  over  one  acre  within  or  without  a  town  plat.     A  shop, 


Homestead.  221 

Btoro  or  other  bnililJng  may  be.  It  must  be  marked  ofT  by  visible  monu- 
ments unless  it  enibraees  the  whole  of  a  subdivision.  When  marked  on 
a  plat  the  direction  and  distance  of  the  starting  point  from  some  corner 
of  the  dwelling-house  shall  be  stated.  The  description,  certified  and  ac- 
knowledged by  the  owner,  shall  be  recorded  by  the  register  of  deeds  in 
a  homestead  book.  The  value  not  to  exceed  $5,000:  C.  C,  sees.  3215- 
323tj.  Upon  the  death  of  the  head  of  the  family  it  is  distributed  to  the 
family,  an!  rniy  excess  in  value  may  be  taken  by  creditors  by  putting  in 
mjtion  pruci-rdings  similar  to  the  appraisements,  ete^  in  use  in  Cali- 
fornia. 

Utah:  The  lands  and  appurtenances  may  be  in  one  or  more  localities. 
The  value  not  to  exceed  $1,500  for  the  head  of  the  family  and  $500  for 
his  wife,  and  $250  for  each  other  moml  r  of  his  family.  In  other  re- 
spcct-.s  the  law  is  similar  to  that  of  California:  Eev.  Stata.,  sees.  1147- 
IKJ-,. 

Washington:  The  value  not  to  exceed  $2,000.  In  other  respects  it 
i.  in  all  its  main  features  a  copy  of  the  California  law:  Ballinger's 
Codes,  sees.  5214-5247. 

Wyoming:  Every  householder  being  the  head  of  a  family  is  entitled 
to  exemptions,  not  to  exceed  in  value  $1,500.  It  is  only  exempt  when 
occupied  by  the  person  entitled  to  it  or  his  family.  It  may  consist  of  a 
house  and  lot,  or  lots  in  a  town  or  city,  and  if  a  farm  consisting  of  not 
exceeding  one  hundred  and  sixty  acres,  in  value  not  exceeding  $1,500. 
Neither  declaration  nor  recording  are  necessary:  Rev.  Stats.,  sees.  3901- 
3911.  It  is,  on  the  whole,  a  matter  of  exemption  from  execution,  the 
same  claims  to  be  made  when  attached  or  levied  upon.  It  is  classified 
ii:  the  statutes,  not  under  the  head  "  Ilomestead, "  but  under  "Exemp- 
tions from  Execution." 

No.  266. — Declaration  of  Homestead  by  Wife  on  Her  Sep- 
arate  Property. 

[The  same  as  No.  265  down  to  and  including  the  words:  "I 
estimate  to  be  five  thousand  dollars,"  and  continue  as  follows:] 
"I  declare  that  the  land  and  premises  above  described  are  my 
separate  property,  and  I  consent  to  its  becoming  a  homestead 
for  myself  and  husband." 

No.    267. — Declaration    of    Homestead    by    Husband — Wife's 
Separate  Property. 

[The  same  as  No.  265  down  to  and  including  the  words,  "I 
estimate  to  be  five  thousand  dollars" ;  and  I,  M.  J.  F.,  declare 
that  the  premises  are  my  separate  property  and  I  consent  to  their 
declaration  of  homestead  by  my  husband,  /.   C.  F.] 

No.  268. — Declaration  by  Urunarried  Person  the  Head  of  a 

Family. 

Know  all  Men  by  these  Presents:  That  I  do  hereby  cer- 
tify and  declare  that  I  am  not  married,  and  that  I  do  now,  at  the 
time  of  making  this  declaration,  actually  reside  with  my  family 
on  the  land  and  premises  hereinafter  described.  That  my  fam- 
Vy  consists  of  my  father  and  mother,  now  under  my  care  and 
maintenance.     That  the  land  and  premises  on  which  I  reside  are 


222  New  Book  of  Forms. 

bounded  and  described  as  follows,  to  wit :  Lying  and  being  in  the 
city  and  county  of  San  Francisco,  state  of  California,  and  com- 
mencing:   [Description.] 

That  it  is  my  intention  to  use  and  claim  the  said  lot  of  land 
and  premises  above  described,  together  with  the  dwelling-house 
thereon,  and  its  appurtenances,  as  a  homestead,  and  I  do  hereby 
select  and  claim  the  same  as  a  homestead.  That  the  actual  cash 
value  of  said  property  I  estimate  to  be  four  thousand  dollars. 

Unmarried  Person. — A  person  other  than  the  head  of  a  family  mnst 
execute  and  acknowledge  a  declaration  of  homestead  in  the  same  man- 
ner as  a  grant  of  real  property  is  acknowledged.  It  must  contain 
everything  required  in  the  second,  third  and  fourth  subdivisions  of 
section  1263,  Civil  Code.  See  "Declaration  of  by  Husband  or  Wife." 
'Acknowledgment  must  be  made  in  the  same  manner  and  form  necessary 
to  the  conveyance  of  land:  C.  C,  sees.  1266-1269;  Clements  v.  Stanton, 
47  Cal.  60;  Beck  v.  Soward,  76  Cal.  527,  18  Pac.  650;  Kennedy  v.  Gloster, 
98  Cal.  143,  32  Pac.  941. 

No.  269. — By  Unmarried  Person  the  Head  of  a  Family. 

[The  same  as  in  No.  268,  down  to  and  including  the  words, 
"hereafter  described";  then  continue:]  "That  my  family  consists 
of,"  etc.  [as  the  case  may  be,  either:  i.  His  or  her  minor  child, 
or  minor  grandchild,  or  the  minor  child  of  his  or  her  deceased 
wife  or  husband;  2.  A  minor  brother  or  sister,  or  the  minor 
child  of  a  deceased  brother  or  sister;  5.  A  father,  mother,  grand- 
father or  grandmother ;  4.  The  father,  mother,  grandfather,  or 
grandmother  of  a  deceased  husband  or  wife;  5.  An  unmarried 
sister,  or  any  other  of  the  relatives  m.entioned  in  this  section, 
who  have  attained  the  age  of  majority,  and  are  unable  to  take 
care  of  or  support  themselves.     Conclude  as  in  No.  268.] 

No.   270. — Declaration  by  Person  not  Head  of  FamUy. 

Know  all  Men  by  these  Presents:  That  I,  G.  F.,  do  now, 
at  the  time  of  making  this  declaration,  actually  reside  on  the 
premises  hereinafter  described.  That  said  premises  are  bounded 
and  described  as  follows,  to  wit  [description].  I  claim  the  said 
premises,  with  the  dwelling-house  thereon,  and  the  appurtenances, 
as  a  homestead.  That  the  actual  cash  value  of  said  premises 
I  estimate  at  one  thousand  dollars. 

In  witness  whereof,  etc. 

No.   271. — Homestead  Abandoned. 

Know  all  Men  by  these  Presents:  That  we,  /.  C.  F.  and 
M.  /.  F.,  husband  and  wife,  do  hereby  abandon,  release,  and  dis- 
charge from  any  and  all  claim  by  us,  as  a  homestead,  the  lot  of 


Homestead.  223 

land  and  premises,  situate,  lying  and  being  in  the  county  of  Sac- 
ramento, state  of  California,  bounded  and  described  as  follows, 
to  wit:  [Description.] 

Together  with  the  tenements  and  appurtenances  thereunto  be- 
longing. 

In  witness  whereof,  zve  have  hereunto  set  our  hands  and  seals 
this  third  day  of  June,  one  thousand  nine  hundred  and  five. 

Termination  of. — It  may  be  encumbered  only  by  conveyance  executed 
and  acknowledged  by  both  husband  and  wife:  C.  C,  sec.  1242.  It  may 
be  abandoned,  first,  only  by  a  declaration  of  abandonment,  or  a  grant 
thereof  executed  and  acknowledged  by  the  husband  and  wife,  if  the 
claimant  is  married;  second,  by  the  claimant  if  unmarried:  Cal.  C.  C, 
Be*.  1245. 


No.  272. — Application  for  Appraisers  to  Appraise  the  Value 
of  Homestead. 

[Title  of  Court  and  Cause.] 

To  the  Honorable,  the  Superior  Court  of  the  City  and  County  of 
San  Francisco,  State  of  California: 
The  petition  of  The  C.  S.  and  L.  Society,  a  corporation,  the 
plaintiff  in  the  above-entitled  action,  states  that  the  facts  upon 
which  this  petition  is  founded  are  as  follows : 

That  in  said  action  on  the  third  day  of  June,  ipoj,  plaintiff  re- 
covered judgment  against  this  defendant,  /.  C.  P.  and  M.  J.  F., 
his  zinfe,  for  the  sum  of  $4,000,  upon  an  unsecured  promissory 
note  executed  by  said  defendants  to  petitioners.  That  execution 
under  said  judgment  has  been  levied  by  the  sheriff  of  said  city 
and  county  upon  the  premises  and  dwelling-house  thereon,  de- 
scribed as  follows,  to  wit:  [Description.] 

That  prior  to  said  entry  of  said  judgment,  defendants,  in  form 
as  is  by  law  required,  declared  and  caused  to  be  recorded  in  the 
office  of  the  recorder  of  said  city  and  county  a  homestead  upon 
said  premises,  and  estimated  the  value  thereof  not  to  exceed 
$5,000. 

That  immediately  after  the  levy  of  said  execution  said  defend- 
ants notified  said  sheriff  that  said  premises  were  their,  defend- 
ants', homestead,  and  said  sheriff  refused  to  proceed  further  with 
said  execution.  Petition  states,  upon  information  and  belief, 
that  said  premises  are  of  the  value  of  $12,000,  and  he  prays  the 
court  to  appoint  three  disinterested  persons,  residents  of  said  city 
and  county,  to  appraise  the  value  of  said  homestead  ;  and  for 
such  other  relief  as  petitioner  may  be  entitled  to  when  said  ap- 
praisement is  made  and  reported  to  the  court. 

NOTE.— California,  C.  C.  P.,  sec.  1245. 


224  New  Book  of  Forms. 

No.  273. — Notice  of  Time  and  Place  of  Hearing  Petition. 

[Title  of  Court  and  Cause.] 

To  J.  C.  F.  and  M.  J.  F.,  His  Wife: 

Please  take  notice  that  the  petition  of  The  C.  S.  and  L.  Society 
for  an  order  to  appoint  appraisers  to  appraise  the  value  of  the 
premises  described  in  the  petition  served  on  you  at  the  time  this 
notice  is  served  has  been  set  for  hearing  before  said  court  at 
the  courtroom  thereof,  in  the  said  city  and  county,  at  ten  o'clock 
A.  M.,  on  Friday,  August  20,  1905. 

Dated  and  signed. 

No.   274. — Order  Appointing   Appraisers. 

[Title  of  Court  and  Cause.] 

At  the  hearing  of  the  above-entitled  matter,  and  upon  proof 
of  the  service  of  a  copy  of  the  petition  filed  herein  praying  for 
the  appointment  of  appraisers  to  appraise  the  property  described 
in  said  petition,  and  also  proof  of  the  service  of  notice  of  the 
time  and  place  of  hearing  said  petition  upon  the  claimants  of  the 
homestead  described  in  it,  in  the  manner  prescribed  by  law,  it  is 
ordered  that  /.  S.,  R.  D.  and  F.  F.  B.,  three  disinterested  resi- 
dents of  the  city  and  county  of  San  Francisco  be,  and  they  are 
hereby,  appointed  to  appraise  the  value  of  said  property  and 
report  in  writing  to  this  court  their  appraisement 

No.  275. — Oath  of  Appraisers. 

[Title  of  Court  and  Cause.] 

You  and  each  of  you  do  solemnly  swear  that  you  will  faith- 
fully perform  your  duties  as  appraisers  in  appraising  the  value 
of  the  property  described  in  the  petition  of  The  C.  S.  and  L. 
Society  in  the  above-entitled  matter.     So  help  you  God. 

No.  276. — Report  of  Appraisers — No  Division  of  Land. 
[Title  of  Court  and  Cause.] 

To  the  Honorable,  F.  H.  K.,  Judge  of  said  Superior  Court: 

The  undersigned,  appraisers  appointed  by  you  in  the  above- 
entitled  proceedings,  to  appraise  the  value  of  that  land  and  im- 
provements situated  in  said  city  and  county,  bounded  and  de- 
scribed as  follows,  to  wit:  [Description.]  Beg  leave  to  report 
that  immediately  after  their  appointment  they  each  were  sworn 
in  manner  and  form  as  by  law  required,  to  faithfully  perform 


Homestead.  225 

their  duties  as  said  appraisers.  That  they  viewed  said  premises 
immediately  after  being  sworn  and  have  appraiscsd  the  value 
thereof.  That  we  appraised  the  value  of  the  land  and  the  im- 
provements thereon  at  $12,000  in  gold  coin  of  the  United  States. 
We  value  the  land  without  the  improvements  at  $10,000,  and  the 
improvements  while  remaining  on  the  land  at  $2,000,  and  report 
that  the  improvements  are  not  sufficiently  strong  to  be  removed 
from  the  land,  and  their  only  value  to  the  land  is  for  residence 
purposes,  a  Chinese  washhouse,  at  a  rental  of  about  $25  a  month. 
The  lot  above  described,  having  only  50  feet  frontage  on  a  street 
by  12 J  feet  in  depth,  cannot  be  divided  without  material  injury 
to  the  value  of  the  premises. 

No.  277. — Report  of  Appraisers — Division  of  Land. 
[Title  of  Court  and  Cause.] 

[The  same  as  in  No.  276  down  to  and  including  the  words 
and  figures,  "About  $2^  a  month":]  That  the  lot  above  described 
has  a  frontage  of  160  feet  on  the  ivest  side  of  Maple  street  in 
said  city  and  county  by  a  depth  of  100  feet  on  the  north  side  of 
Jackson.  The  house  above  described  fronts  on  Maple  street  80 
feet  northerly  of  the  northwest  comer  of  Jackson  and  Maple 
street,  with  an  unobstructed  view  of  a  large  part  of  the  San 
Francisco  bay,  Alcatras,  Belvedere  and  the  camp,  woods  and 
buildings  on  the  Presidio.  We  appraise  the  value  of  the  land 
and  improvements  last  above  described  at  $j,ooo.  We  appraise 
the  value  of  the  land  on  the  northeast  comer  of  Maple  and  Jack- 
son street,  80  feet  on  Maple  by  100  feet  on  Jackson,  at  $/,ooo, 
all  said  values  in  gold  coin  of  the  United  States ;  and  we  report 
that  the  said  land  can  be  divided  as  above  described  without 
material,  or  any,  injury. 

No.  278. — Order  Directing  Homestead  be  Sold,  and  Surplus 
Above  Five  Thousand  Dollars  Applied  on  Execution. 

[Title  of  Court  and  Cause.] 

It  appearing  from  the  report  of  the  appraisers  herein  that  the 
land  claimed  as  a  homestead  exceeds  in  value  the  sum  of  $5,000 
homestead  exemption,  and  that  it  cannot  be  divided,  it  is  hereby 
ordered  that  the  sheriff  of  the  said  city  and  county  sell,  under 
execution,  in  the  manner  directed  by  law  the  premises  described 
in  said  report ;  that  is  to  say :  No  bid  must  be  received  unless  it 
exceeds  $5,000.  If  the  sale  is  made,  $5,000*  must  be  paid  to 
/.  C.  F.  and  M.  J.  F.,  his  unfe,  the  homestead  claimants,  and  the 
balance  applied  to  the  satisfaction  of  the  execution. 


*The  $5,000  represents  the  homostcad  and  is,  during  the  six  following 
months,  exempt  from  execution,  and  it  is  also  exempt  from  the  voluntary 
New  Forms — 15 


226  New  Book  of  Forms. 


No,  279. — Order  Directing  Division  of  Homestead  Land. 

[Title  of  Court  and  Cause.] 

On  reading  and  filing  the  report  and  appraisement  of  /.  S., 
R.  D.,  and  P.  B.,  the  appraisers  appointed  to  appraise  the  value 
of  that  land  situated  in  the  city  and  county  of  San  Francisco, 
state  of  California,  and  bounded  and  described  as  follows,  to  wit : 
[Description.] 

It  is  ordered  that  said  appraisers  set  off  to  /.  C.  F.  and  M.  J. 
F.,  as  a  homestead  a  tract  of  land  with  the  improvements  there- 
on, with  the  boundaries  of  the  land  above  described  commencing 
on  the  west  line  of  Maple  street,  80  feet  from  the  northeast  corner 
of  Maple  and  Jackson;  running  northerly  80  feet,  with  a  uni- 
form depth  of  100  feet,  including  the  residence ;  and  that  they 
make  a  map  of  the  whole  tract  showing  the  part  set  off  as  a 
homestead  as  aforesaid  and  the  part  separated  from  the  home- 
stead, and  report  the  same  to  this  court 


No.   280. — Order   Setting   Apart   Homestead   and   Permitting 
Execution   Against   Surplus   Land. 

[Title  of  Court  and  Cause.] 

J.  S.,  R.  D.  and  F.  F.  B,,  appraisers  in  the  above-entitled  mat- 
ter, having  under  the  order  of  this  court  set  apart  to  /.  C.  F.  and 
M.  J.  F.,  his  zvife,  all  that  land  described  as  follows,  to  wit  [de- 
scription], as  a  homestead,  it  is  ordered  that  the  said  premises, 
including  the  residence  thereon,  are  hereby  set  apart  to  said  /.  C. 
F.,  and  M.  J.  F.,  his  zvife,  as  a  homestead,  and  it  is  further  ordered 
that  the  remainder  of  said  land  described  in  the  petition  of  The 
C.  S.  and  L.  Society  filed  in  this  matter  is  subject  to  execution, 
and  the  said  C.  S.  and  L.  Society  may  enforce  its  execution 
against  said  remainder  described  as  follows,  to  wit:  [Descrip- 
tion.] 


disposition  of  the  husband  during  the  same  period.  It  seems  to  follow 
tLat  the  wife  is  entitled  to  its  possession  and  that  it  is  the  sheriff's  duty 
to  delive:  the  money  to  the  wife,  but  not  to  deliver  it  to  her  prior  to  the 
expiration  of  six  months  unless  a  declaration  of  abandonment  of  the 
homestead  is  executed  and  recorded.  Even  if  the  husband  consents  to 
the  delivery  to  the  wife,  it  would  be  prudent  to  demand  that  an  abandon- 
ment of  the  homestead  be  executed  and  recorded;  and  if  there  is  a  dis- 
pute about  the  custody  of  the  money,  it  is  always  advisable  to  pay  it 
into  court.  It  is  worth  remembering  that  section  1257,  Civil  Code,  does 
not  protect  the  proceeds  of  the  homestead  from  the  wife's  disposal 
during  the  six  months  referred  to:  Cal.  C.  C,  sec.  1257. 


Homestead.  227 


No.  281. — Order  Fixing  Compensation  of  Appraisers. 

[Title  of  Court  and  Cause.] 

It  appearing  to  the  court  that  /.  S.,  R.  D.  and  F.  F.  B.,  ap- 
praisers in  the  above-entitled  matter,  have  each  been  actually  en- 
gac^ed  three  days  in  performing  their  duties  as  appraisers,  it  is 
ordered  that  their  compensation  is  fixed  at  $1^  each,  making  a 
total  of  $43. 


No.  282. — Application  of  Husband  of    Insane  Wife    to    Sell 

Homestead. 

[Title  of  Court  and  Cause.] 

To  the  Honorable  the  Superior  Court  of  the  City  and  County  of 
San  Francisco,  State  of  California: 

Your  petitioner  respectfully  states:  That  his  name  is  A.  B., 
and  his  age  60  years.  That  he  is  married  and  his  wife  is  f^o 
years  of  age,  and  her  name  is  M.  A.  B.  That  since  his  marriage 
to  her  she  became  hopelessly  insane  and  was,  on  the  jrf  day  of 
June,  IQ05,  in  manner  and  form  as  is  by  law  provided,  declared 
to  be  an  insane  person,  and  was  in  manner  and  form  as  is  bv 
law  required  committed  to  the  said  state  asylum  for  the  insnne 
situated  at  Napa,  in  said  state,  and  she  is  now  insane  and  is  con- 
fined in  said  asylum  in  a  ward  set  aside  for  incurable  insane  per- 
sons. That  since  said  marriage  one  child,  and  no  more,  has  been 
born  to  petitioner  and  his  said  wife,  and  it  is  6  years  and  j  months 
old.  That  his  said  wife  has  no  male  or  other  relative  in  said 
state. 

That  since  said  marriage  and  prior  to  his  wife's  insanity,  peti- 
tioner and  his  wife  declared  upon  their  common  property  a  home- 
stead upon  all  that  land  and  their  residence  thereon  situated,  in 
the  city  and  county  of  San  Francisco,  state  of  California,  and 
bounded  and  described  as  follows,  to  wit:   [Description.] 

The  value  of  said  homestead  was  stated  in  said  petition  to  be 
and  the  same  is  of  the  value  of  $1,000.  That  after  his  marriage 
he  became  a  teamster;  he  secured  steady  employment  at  a  good 
salary  ivith  an  owner  of  freight  teams  in  said  city  and  county;  he 
xva3  satisfied  zvith  his  employer  and  employment,  and  was  sarin"- 
from  his  earnings  an  average  of  $^0  a  month.  He  belonged  to 
a  teamster's  union,  which  zvent  on  a  sympathetic  strike  ostensibly 
to  aid  freight  handlers  who  had  a  grievance,  had  struck  and  zvere 
"out."  Petitioner  zvent  out  zvith  his  union;  his  zvife  protested, 
but  he  listened  to  the  call  of  his  fellozvs,  instead  of  the  pleading 
of  his  wife,  and  when  he  lost  his  place  she  grieved  so  much  that 
she  lost  her  mind.  When  the  strike  zvas  declared  "off"  petitioner 
lost  his  place  and  lias  re-mained  ever  since  out  of  employment; 


228  New  Book  of  Forms. 

and  he  is  now  too  old  to  learn  other  rvork,  and  when  he  applies 
for  a  place  as  teamster  he  is  refused  on  account  of  his  age  and 
lame  hand.  That  he  has  no  money  or  other  resources  and  it  is 
necessary  for  him  to  sell  said  homestead  in  order  to  educate  and 
support  his  said  child.  That  petitioner  lost  the  use  of  his  right 
hand  from  the  effect  of  a  blow  on  the  zvrist  by  an  iron  bar  during 
said  strike.  Petitioner  further  states  that  he  is  not,  nor  has 
he  ever  been,  addicted  to  the  use  of  liquors.  That  he  is  a  mem- 
ber in  good  standing  of  a  Methodist  church,  and  will  consent 
to  the  deposit  of  the  proceeds  of  the  sale  of  said  homestead  zvith 
the  clerk  of  said  court,  to  be  used  exclusively  for  the  support 
of  said  child  and  its  mother. 

Wherefore,  petitioner  prays  for  an  order  empowering  him  to 
sell  said  homestead. 

NOTE.— Act  of  March  25,  1874,  Stats.,  p.  582. 

No,  283. — Notice  of  Application  to  Sell  Homestead  of  Insane 

Person. 

[Title  of  Court  and  Cause.] 

Notice  is  hereby  given  that  A.  B.  has  applied  to  said  superior 
court  for  an  order  permitting  him  to  sell  the  homestead  of  him- 
self and  wife,  M.  A.  B.,  now  confined  as  a  hopelessly  insane 
person  in  the  State  Insane  Asylum  at  Napa,  California.     . 

NOTE.— Act  of  March  25,  1874,  p.  582. 

No.  284. — Appearance  of  Public  Administrator  on  Application 
to   Sell  Homestead. 

[Title  of  Court  and  Cause.] 
To  C.  D.,  Attorney  for  A.  B. : 

Please  take  notice  that  I,  as  public  administrator  of  said  city 
and  county,  and  as  a  friend  of  the  court  appear  in  said  action 
to  see  that  the  application  of  A.  B.  to  sell  his  and  his  insane  wife's 
homestead  is  made  in  good  faith,  and  tliat  the  proceedings  are 
fairly  conducted. 

NOTE.— Act  of  March  25,  1874,  p.  582. 

•^Q    285. — Order  Permitting  a  Sale  of  Insane  Wife's  Home- 
stead. 

[Title  of  Court  and  Cause.] 

Said  application  having  come  on  to  be  heard  this  ^d  day  of 
August,  1905,  and  it  appearing  to  the  court  from  the  evidence 
taken  that  all  the  statements  contained  in  the  said  application 
are  true,  and  it  also  appearing  that  notice  of  said  application  was 
given  and  established  by  publication,  as  by   law   required,  and 


Homestead.  229 

personal  service  of  said  notice  having  been  made  on  the  pul)lic 
administrator  of  said  city  and  county  as  by  law  required,  and  he 
having-  appeared  in  court  and  participated  in  said  proceedintjs, 
and  no  objections  to  said  application  having-  been  made,  and  it 
appearing  to  the  court  from  the  aforesaid  proceedings  that  said 
application  ought  to  be  granted :  It  is  therefore  ordered  that  A. 
B.,  said  applicant,  be,  and  he  is  hereby  permitted  to  grant  the 
homestead  described  in  his  application  the  same  as  if  it  had  not 
been  made  a  homestead  and  was  his  separate  property. 

It  is  further  ordered  that  the  public  administrator  is  allowed 
a  fee  of  $20  for  his  appearance  to  be  taxed  as  costs  against  A.  B., 
the  applicant. 

NOTE.— Act  of  March  25,  1874,  p.  582. 

No.  286. — Public  Administrator  Remits  His  Fees. 
[Title  of  Court  and  Cause.] 

Know  all  Men  by  these  Presents:  That  I,  the  public  ad- 
ministrator of  the  city  and  county  of  San  Francisco,  state  of  Cali- 
fornia, United  States  of  America,  hereby,  zvith  the  consent  of  C. 
D.,  my  attorney,  and  on  my  ozmi  behalf,  remit,  renounce,  refuse 
avoid,  discard,  expunge,  and  cancel  my  fee  of  $20  allowed  in 
the  said  court's  final  order  herein. 

NOTE. — Act  of  March  25,  1874,  sees.  2,  5,  p.  582. 

No.   287. — Application   of   Wife   of   Insane    Husband   to    Sell 

Homestead. 

[The  same  as  in  No.  282,  except  in  respect  to  the  reasons  for 
the  application,  etc.,  with  necessary  change  of  names,  etc.] 

No.   288. — Clause  in  Divorce  Decree  as  to  Homestead — Ex- 
treme Cruelty  to  One  Party. 

[It  is  further  ordered  that  the  homestead  land  of  the  parties 
to  this  proceeding,  with  the  improvements  thereon,  includino-  the 
residence,  to  wit  [description],  is  hereby  assigned  to  A.  B.  C, 
the  plaintiff  herein,  to  be  and  remain  her  separate  property.] 

No.  289. — Equal  Division  of  Homestead. 

[The  same  as  in  No.  279  down  to  and  including  the  words, 
"is  hereby  assigned,"  "to  A.  B.  C,  the  plaintiff,  and  D.  E.  F.', 
the  defendant  in  equal  proportions,  they  to  hold  the  same  from 
and  after  tlie  day  upon  which  this  decree  becomes  final,  as  ten- 
ants in  common,  the  same  as  if  they  had  never  been  husband 
and  wife,  but  had  acquired  said  homestead  by  purchase  as  ten- 
ants in  common."] 


230  Ne;w  Book  of  Forms. 


No.  290. — Homestead  to  be  Sold  and  Proceeds  Divided. 

It  is  further  ordered  that  the  homestead  be  sold  and  the  pro- 
ceeds, after  deducting  the  costs  and  expenses  of  the  sale,  to  be 
divided  equally  between  the  parties  to  this  action,  and  that  said 
sale  be  made  in  the  manner  as  may  be  hereinafter  stipulated ; 
but  in  case  such  agreement  cannot  be  had,  such  further  order 
will  be  made  respecting  said  sale  as  may  seem  necessary  when 
the  fact  of  disagreement  is  reported  to  tlie  court. 

NOTE. — California,  C.  C,  see.  146. 

No.   291. — Innocent   Party  Takes   During   Limited   Period — 
Community  Property. 

It  appearing  to  the  court  that  the  said  homestead  was  selected 
from  the  community  property,  and  it  also  appearing- that  A.  F. 
L.,  plaintiff,  is  the  innocent  party  to  this  action,  it  is  decreed 
that  said  homestead  be,  and  the  same  is  hereby,  assigned  to  ^.  -F. 
L.,  during  the  remainder  of  her  life,  and  upon  her  death  to  be 
subject  to  the  future  disposition  of  this  court. 

No.  292. — Innocent  Party — During  Life — Separate  Property. 

It  appearing  to  the  court  that  the  said  homestead  was  selected 
from  the  separate  property  of  D.  E.  L.,  defendant  herein,  it  is 
decreed  said  homestead  be,  and  the  same  is  hereby,  assigned  to 
said  D.  E.  L.,  the  former  owner,  but  it  is  hereby  by  this  decree 
assigned  to  A.  B.  L.,  plaintiff  herein,  for  her  own  use  and  ben- 
efit for  a  limited  period,  to  wit,  during  the  remainder  of  her  life. 

NOTK— California,  C.  C,  sec.  146. 

No.  293. — Homestead  on  Death  of  "Head  of  a  Family.'^ 

[Title  of  Court  and  Cause.] 

It  appearing  to  the  court  that  said  A.  B.,  deceased,  was  at  the 
time  of  his  death  the  head  of  a  family,  and  that  the  homestead 
described  in  the  inventory  filed  in  the  above-entitled  matter  was 
selected  from  his  separate  property.  That  his  wife,  being  dead, 
he  was  at  the  time  of  his  death  residing  with  his  family  on  said 
premises,  and  that  his  family  consisted  of  B.  B.,  an  unmarried 
sister  of  the  age  of  65  years,  who  then  was,  and  now  is,  unable  to 
support  herself;  also  his  father,  B.  B.  B.;  his  grandmother,  E.  B.; 
a  minor  child  of  his  deceased  brother,  C.  B.,  named  O.  B.,  aged 
22  years;  a  minor,  named  J.  B.,  brother,  of  the  age  of  11  years; 
and  his  minor  grandchild,  P.  A.  B.,  aged  14  years.  That  said 
homestead  is  described  as  follows,  to  wit:  [Description.] 


HOMRSTEAD.  231 

It  is  ordered  that  said  premises,  with  the  improvements  there- 
on, be,  and  they  are  hereby,  assigned  to  the  family  of  said  de- 
ceased, until  the  said  D.  B.,  his  unmarried  sister,  is  able  to  sup- 
port herself;  and  until  the  death  of  B.  B.  B.,  his  father,  and  until 
the  death  of  E.  B.,  his  grandmother,  and  until  O.  B.,  the  minor 
daughter  of  his  brother  C.  B.,  reaches  her  majority,  and  until 
his  minor  brother,  /.  B.,  reaches  his  majority,  and  until  his 
minor  grandson,  F.  A.  B.,  reaches  his  majority. 

NOTE. — There  being  no  direct  statutory  definition  of  the  word 
"family"  aa  used  in  the  California  codes,  this  form  was  prepared  un- 
dci  the  assumption  that,  by  implication,  a  family  consists  of  the  (one 
or  more)  persons  mentioned  in  the  Civil  Code,  sections  1238,  1260,  1261, 
1262,  1263,  1266  and  1474.  The  phrase,  "head  of  a  family."  is  defined 
in  section  1261  to  be  a  person  who  resides  on  the  homestead  premises 
with  "him  or  her,"  that  is  to  say,  the  class  of  persons  (one  or  more  of 
them)  mentioned  as  beneficiaries  in  the  above  form  is  necessarily  the 
:<"amily  of  which  the  deceased  A.  B.  was  the  head.  The  statute  refers 
to  the  family  as  continuing  after  the  head  of  it  is  no  more.  In  such 
case  B.  B.,  the  surviving  sister,  a  grandchild  baby,  would  be  deceased's 
family,  even  if  it  married  before  attaining  its  majority  and  had  a 
family  of  its  own.  The  study  of  the  law  is  highly  recommended  as  the 
one  pre-eminent  science  designed  by  the  gods  to  develop  a  superabun- 
dance of  active  gray  matter  in  growing  brain  cases,  so  that  their  owners 
may  become  skilled  in  construing  the  sometimes  unfathomable  inten- 
tions of  codifiers  of  the  law  above  raf erred  to. 

No.  294. — Probate  Homestead  for  Support  of  Family — Order 

of  Court 

[Title  of  Court  and  Cause.] 

[After  stating  the  facts  to  bring  the  order  within  section  1465, 
Code  of  Civil  Procedure,  which  facts  are  common  to  all  orders  of 
like  nature,  proceed  as  follows:]  And  it  appearing  to  the  court 
that  during  the  lifetime  of  said  deceased  a  homestead  had  not 
been  selected,  designated  and  recorded,  it  is  herebv  ordered  that 
out  of  the  real  estate  described  in  the  inventory  made  and  filed 
in  the  matter  of  said  estate,  a  homestead  be,  and  is  herebv  set 
apart  for  the  use  of  A.  B.  C,  the  surviving  wife  of  said  C.  B.  C, 
deceased,  and  their  minor  children,  to  wit,  J.,  aged  10  years;  M., 
aged  8  years,  and  B.,  aged  2  years.  Said  homestead  is  bounded 
and  described  as  follows,  to  wit:   [Description.] 

NOTE— California,  C.  C.  P.,  sec.  1465. 

No.    295. — Probate     Homestead — Separate    Property   of   De- 
ceased. 

[Title  of  Court  and  Cause.] 

[The  same  as  in  No.  293.  down  to  and  including  the  last  words 
of  the  description;  then  proceed:]  And  it  appearing  to  the  court 


232  New  Book  of  Forms. 

that  said  property  was  the  separate  property  of  deceased,  and 
that  he  left  surviving  A.  B.  D.,  his  widow,  and  no  minor  children, 
it  is  ordered  that  out  of  said  property  a  homestead  be,  and  the 
same  is  hereby  selected,  designated  and  set  apart  for  the  use 
and  benefit  of  said  A.  B.  D.  during  the  remainder  of  her  Hfe. 
Said  homestead  is  bounded  and  described  as  follows,  to  wit: 
[Description.] 

No.  296. — Assignment  of  Homestead  to  the  Widow  of  De- 
ceased on  Court's  Motion — Common  Property. 

[Title  of  Court  and  Cause.] 

■  It  appearing  to  the  court  from  the  inventory  filed  herein  that 
the  homestead  therein  described  was  in  the  form  and  manner  as 
is  by  law  provided,  selected  and  designated  from  the  common 
property  of  A.  B.  C,  deceased,  and  his  widow,  D.  B.  C,  it  is 
hereby  ordered  that  all  that  property  situated  in  the  city  and 
county  of  San  Francisco,  state  of  California,  with  improvements 
thereon,  bounded  and  described  as  follows,  to  wit  [description], 
be,  and  the  same  is  hereby,  set  apart  for  the  use  of  D.  B.  C,  the 
surviving  wife  of  said  deceased. 

No.  297. — Assignment  of  Homestead  to  the  Widow  of  De- 
ceased on  Court's  Motion — Separate  Property  of  De- 
ceased. 

[Title  of  Court  and  Cause.] 

It  appearing  to  the  court  from  the  inventor}^  filed  herein  that 
the  homestead  therein  described  was,  in  the  manner  and  form 
as  is  by  law  provided,  selected  and  designated  by  said  A.  B.  C, 
deceased,  out  of  his  separate  property,  it  is  hereby  ordered  that 
said  homestead  be,  and  the  same  is  hereby,  set  apart  for  the  use 
of  B.  A.  C,  the  surviving  wife  of  said  deceased. 

No.      298. — Homestead    Selected     by    Deceased — Appraisers 
Make  Appraisement  and  Inventory.* 

[Title  of  Court  and  Cause.] 

To  the  Honorable  the  Superior  Court: 

The  undersigned,  the  appraisers  appointed  to  make  an  ap- 
praisement of  all  the  property  of  the  above-entitled  estate,  have 
returned  in  the  inventory  of  which  this  writing  is  a  part  as  the 
homestead  of  said  deceased  all  that  lot  of  land  which  is  bounded 
and  described  as  follows,  to  wit,  commencing  [description],  was 

•Clause  to  be  inserted  in  the  inventory  when  homestead  exceeded  $5,000 
in  value,  when  selected  and  cannot  be  divided,  etc:  Cal.  C.  C.  P.,  sees. 
1443,   1476. 


Homestead.  233 

on  the  third  day  of  May,  1904,  with  the  dwelling-house  therein, 
selected  and  recorded  in  the  recorder's  office  of  said  city  and 
county  as  a  homestead  by  said  deceased,  and  the  same  is  in  this 
inventory  appraised  at  $12,000,  and  we  and  each  of  us  have  care- 
fully inspected  said  property,  and  have  ascertained  and  appraised 
the  value  of  said  homestead,  on  the  third  day  of  May,  1904,  at 
$8,000,  which  said  sum  was  the  value  of  said  homestead  at  the 
time  it  was  selected,  and  we  have  found  that  said  premises  can- 
not be  divided  without  material  injury. 


No.  299. — Homestead  Selected  by  Deceased — Appraisers  Ad- 
measure and  Set  Apart  Homestead  in  Inventory,* 

[Title  of  Court  and  Cause.] 

[The  same  as  in  No.  298,  down  to  and  including  the  figures 
"$8,000";  then  continue  as  follows:]  And  we  have  determined 
that  said  premises  can  be  divided  without  material  injury,  and 
we  have  admeasured  and  set  apart  as  a  homestead  to  the  parties 
the  said  court  adjudges  to  be  entitled  thereto,  all  that  lot  of  land, 
including  the  dwelling-house  thereon,  bounded  and  described  as 
follows,  to  wit,  commencing  [description],  and  we  have  deter- 
mined that  the  premises  herein  last  above  described,  including 
the  dwelling-house,  amount  in  value  to  tlie  sum  of  $^,000. 


No.  300. — Dissenting  Report  by  One  Appraiser. 

[Title  of  Court  and  Cause.] 
To  the  Superior  Court: 

[The  same  as  in  No.  298.  down  to  and  including  the  figures 
"$8,000";  then  continue  as  follows:]  The  undersigned  dissents 
from  all  that  part  of  the  report  of  the  majority  of  the  appraisers 
appointed  to  appraise  and  inventory  the  property  belonging  to 
said  estate  which  states  that  "said  premises  can  be  divided  with- 
out material  injury,"  because  I  am  of  the  opinion  that  the  prem- 
ises, as  a  whole,  including  the  dzvelling- house  thereon,  can  be 
readily  sold  for  $12,000,  hut  as  suhdizndcd  in  the  manner  de- 
scribed in  the  majority  report,  the  fair  market  value  of  the  home- 
stead w  $5,000,  but  the  remainder  of  the  homestead  premises 
as  selected  and  recorded  on  May  j,  1904,  is  not  worth  over  $4,000, 
and  $4,000  is  about  its  present  market  value.  Tho  homestead 
dwelling-house  I  find  is  of  the  value  of  $6,000,  and  the  land  on 
which  it  stands  not  over  $1,000;  but  if  the  dwelling-house  is  moved 


•Clause  to  be  inserted  in  the  inventory  when  the  homestead  exceeds 
$5,000  in  value  when  selected  and  can  be  divided:  Cal.  C.  C  P  spcq 
1443,   1476.  ■      ■' 


234  New  Book  of  Forms. 

to  the  center  of  the  present  homestead  lot,  and  it  can  he  moved 
at  an  expense  of  $500,  the  whole  property  zvill,  in  my  opinion, 
sell  for  $1^,000.  I  therefore  recommend  that  the  majority  re- 
port be  rejected  ai:d  that  other  appraisers  be  appointed  to  re- 
examine and  appraise  said  property. 

NOTE.— California,  C.  C.  P.,  sec.  1477. 

No.  301. — Order  Setting  Report  of  Appraisers  for  Hearing. 

[Title  of  Court  and  Cause.] 

The  appraisers  appointed  in  the  above-entitled  matter,  having 
made  and  reported  to  this  court  their  inventory  and  appraise- 
ment, it  is  ordered  that  all  that  part  of  their  report  (and  the  dis- 
senting report  of  one  of  said  appraisers,  relating  to  the  home- 
stead of  said  deceased),  be,  and  the  same  is,  set  for  hearing 
objections  to  said  report  from  anyone  interested  in  said  estate 
on  Friday,  the  3d  day  of  October,  IQ05,  at  10  o'clock  A.  M.,  and 
it  is  ordered  that  notice  of  said  hearing  he  given  hy  the  executor 
of  said  estate  by  serving  notice  of  said  hearing  on  all  persons 
who  have  appeared  in  said  matter. 

NOTE. — California,  C.  C.  P.,  sec.  1478. 

No.  302. — Order  Confinning  the  Report  of  the  Majority  of 

Appraisers. 

[Title  of  Court  and  Cause.] 

The  matter  of  hearing  objections  to  the  report  of  the  major- 
ity of  the  appraisers  in  the  above-entitled  matter  coming  on  to 
be  heard  on  this  3d  day  of  October,  ipo§,  and  it  appearing  to  the 
court  that  notice  of  the  time  and  place  of  said  hearing  has  been 
given  as  is  by  the  order  of  this  court  directed,  and  all  parties  in- 
terested having  been  heard,  and  the  matter  having  been  sub- 
mitted for  judgment,  it  is  ordered  that  the  report  of  /.  J.  and  H. 
B.,  the  majority  of  the  said  appraisers,  be,  and  the  same  is,  hereby 
confirmed;  and  it  is  further  ordered  that  the  homestead  as  de- 
scribed in  the  report  of  the  majority  of  the  said  appraisers  be, 
and  the  same  is  hereby,  declared  to  be  the  homestead  oi  A.  B.  C, 
the  widow  of  said  R.  P.  C,  deceased. 

NOTE. — California,  C.  C.  P.,  sec  1478, 

No.  303. — Order  Rejecting  Majority  Report  of  Appraisers. 
[Title  of  Court  and  Cause.] 

[The  same  as  in  No.  302,  down  to  and  including  the  words, 
*^t  is  ordered  that  the  report  of,"  and  continue  as   follows]  : 


Lease.  235 

/.  S.  and  FT.  B.,  the  majority  of  the  said  appraisers,  be,  and  the 
same  is  hereby  rejected,  and  H.  S.,  J.  D.  and  W.  H.  be,  and  they 
are  hereby,  appointed  appraisers  to  examine  upon  the  homestead 
as  the  same  is  described  in  the  inventory  and  appraisement  on 
file  in  said  estate. 

NOTE.— California,  C.  C.  P.,  sec.  1478. 


LEASE. 


No.  304. — Lease  of  Tenement — Extrahazardous. 

This  Indenture,  made  the  jJ  day  of  June,  1904,  witnesseth: 
That  in  consideration  of  the  payment  of  the  rents  and  the  per- 
formance of  all  the  covenants  herein  contained  by  the  lessee,  and 
in  the  manner  stated  herein,  I  do  hereby  lease  unto  C.  D.  the 
following  described  property,  situated  in  the  city  and  county  of 
San  Francisco,  state  of  California:  [Description.]  For  the  term 
of  I  year,  to  wit,  from  June  j,  1905,  to  June  j,  A.  D.  igo6,  at  the 
monthly  rent  of  $100,  gold  coin  of  the  United  States  of  America, 
payable  monthly  in  advance,  on  the  first  day  of  each  month  of  said 
term. 

And  the  said  lessee  does  hereby  promise  to  pav  the  said  monthly 
rent  herein  named,  and  in  the  manner  specified,  together  with 
the  water  rate;  and  not  to  assign  this  lease,  nor  let  nor  underlet 
the  whole  or  any  part  of  said  premises,  nor  make  nor  suffer  to  be 
made  any  alteration  therein,  without  the  written  consent  of  the 
owner.  The  said  lessor  shall  not  be  called  upon  to  make  any  im- 
provements or  repairs,  the  lessee  agreeing  to  keep  the  premises  in 
good  order  at  his  own  expense,  suffering  no  strip  nor  waste 
thereof,  but  the  lessor  may  enter  to  view  or  make  improvements 
or  repairs  at  his  option.  The  lessee  further  agrees  not  to  use 
nor  keep  on  the  premises  any  article  which  the  insurance  com- 
panies may  deem  extrahazardous,  or  which  increases  the  rate  of 
insurance.  And  at  the  expiration  of  said  term,  or  any  sooner 
determination  of  this  lease,  the  lessee  will  quit  and  surrender 
the  premises  in  as  good  order  as  he  received  them,  reasonable 
wear  thereof  and  damage  by  the  elements  excepted. 

And  should  default  be  made  in  the  pavment  of  any  portion  of 
the  rent  when  due,  and  for  5  days  thereafter,  or  in  any  of  the 
covenants  herein  contained,  said  lessor,  agent  or  attorney  mav  re- 
enter and  take  possession  of  said  premises,  remove  all  persons 
therefrom,  and  at  his  option  terminate  this  lease. 


236  New  Book  of  Forms. 


No.  305. — Lease. 

This  Indenture,  made  the  jrf  day  of  June,  1^05,  between 
A.  B.,  the  party  of  the  first  part,  and  C.  D.,  the  party  of  the  sec- 
ond part,  witnesseth :  That  the  said  party  of  the  first  part  does, 
by  these  presents,  demise  and  lease  unto  the  said  party  of  the 
second  part  [description],  with  the  appurtenances  for  the  term  of 
one  year  from  the  jc?  day  of  June,  ipo^,  at  the  rent  or  sum  of 
$1,200,  payable  in  gold  coin  of  the  United  States  of  America,  in 
12  equal  payments  of  $100  each,  on  the  ist  day  of  each  and 
every  month  during  said  term  in  advance. 

And  it  is  hereby  agreed,  that  if  any  rent  shall  be  due  and 
unpaid,  or  if  default  shall  be  made  in  any  of  the  covenants  herein 
contained,  then  it  shall  be  lawful  for  the  said  party  of  the  first 
part  to  re-enter  the  said  premises  and  to  remove  all  persons  there- 
from. 

And  the  said  party  of  the  second  part  does  hereby  covenant, 
promise  and  agree  to  pay  the  said  party  of  the  first  part,  the 
said  rent  in  the  manner  herein  specified.  And  that  at  the  ex- 
piration of  said  term,  the  said  party  of  the  second  part  will  quit 
and  surrender  the  said  premises  in  as  good  state  and  condition 
as  reasonable  use  and  wear  thereof  will  permit  (damages  by  the 
elements  excepted).  And  the  said  party  of  the  first  part  does 
hereby  covenant,  promise  and  agree  that  the  said  party  of  the 
second  part,  paying  the  said  rent,  and  performing  the  covenants 
aforesaid,  shall  and  may  peaceably  and  quietly  have,  hold  and 
enjoy  the  said  premises  for  the  term  aforesaid. 

No.  306. — Lease. 

This  is  to  certify  that  I,  A.  B.,  have  let  unto  C.  D.  the  prem- 
ises known  as  No.  2406  Mission  street,  San  Francisco,  California, 
for  six  months  from  the  iirst  day  of  June,  ipo^,  at  the  rent  of 
forty  dollars  a  month,  payable  on  the  first  day  of  each  month  in 
advance.  Rent  for  the  month  of  June,  1904,  has  been  paid  in 
advance. 

No.  307. — Lease — Not  to  Underlet. 

This  Indenture,  made  the  twenty-eighth  day  of  May,  ipo^, 
witnesseth : 

That  I,  S.  B.,  of  the  city  and  county  of  San  Francisco,  state  of 
California,  lessor,  do  hereby  lease,  demise  and  let  unto  /.  /.,  of 
said  city  and  county,  lessee:  [Description.] 

To  have  and  to  hold,  for  the  term  of  two  years,  to  wit:  from 
the  twenty-eighth  day  of  May,  ipo6,  to  the  ttventy- eighth  day  of 
May,  jgo8,  yielding  and  paying  therefor  the  rent  of  tzuenty-four 
hundred  dollars,  gold  coin  of  the  United  States  of  America;  and 


Lease.  237 

the  said  lessee  promises  to  pay  the  said  rent  in  such  gold  coin, 
and  as  follows,  to  wit :  the  sjim  of  one  hundred  dollars  per  month, 
montlily  in  advance,  on  the  twenty-eighth  day  of  each  and  every 
vionth  during  said  term;  and  to  quit  and  deliver  up  the  premises 
to  the  lessor  or  his  anient  or  attorney,  peaceably  and  quietly,  at 
the  end  of  the  term,  in  as  i^ood  order  and  condition  (reasonable 
use  and  wear  thereof  and  damages  by  the  elements  excepted), 
as  the  same  are  now  or  may  be  put  into,  and  to  pay  the  rent  as 
above  stated  during  the  term,  also  the  rent  as  above  stated  for 
such  further  time  as  the  lessee  may  hold  the  same,  and  not  make 
or  suffer  any  waste  thereof,  nor  lease,  nor  underlet,  nor  permit 
any  other  person  or  persons  to  occupy  or  improve  the  same,  or 
suffer  to  be  made,  any  alteration  therein,  but  with  the  approba- 
tion of  the  lessor  thereto,  in  writing,  having  been  first  obtained, 
and  that  the  lessor  may  enter  to  view  and  make  improvements, 
and  to  expel  the  lessee  if  he  shall  fail  to  pay  the  rent  as  aforesaid, 
or  make  or  suffer  any  strip  or  waste  thereof. 

And  should  default  be  made  in  the  payment  of  any  portion 
of  said  rent  when  due,  and  for  three  days  thereafter,  the  said 
lessor,  his  agent  or  attorney,  may  re-enter  and  take  possession, 
and  at  his  option  terminate  tliis  lease. 

No.  308. — Lease — Holding  Over. 

This  Indenture,  made  and  entered  into  at  Sacramento,  state 
of  California,  this  6th  day  of  January,  JQO§,  between  /.  D.,  of 
the  county  of  Sacramento,  state  of  California,  the  party  of  the 
first  part,  and  D.  J.,  of  the  same  place,  the  party  of  the  second 
part,  witnesseth : 

That  the  said  party  of  the  first  part  has  letten,  and  by  these 
presents  doth  grant,  demise,  and  let,  unto  the  said  party  of  the 
second  part,  and  the  said  party  of  the  second  part  has  hired  and 
taken,  and  by  these  presents  doth  hire  and  take  of  and  from  the 
said  party  of  the  first  part  [description],  with  the  appurtenances, 
one  year  from  the  fifteenth  day  of  January,  ipo6,  at  the  yearly 
rent  or  sum  of  one  thousand  two  hundred  (1,200)  dollars,  pay- 
able monthly  in  advance,  in  equal  monthly  payments  of  one  hun- 
dred (100)  dollars,  in  gold  coin  of  the  United  States. 

And  it  is  agreed,  that  if  any  rent  shall  be  due  and  unpaid,  or  if 
default  shall  be  made  in  any  of  the  covenants  herein  contained, 
then  it  shall  be  lawful  for  the  said  party  of  the  first  part  to  re- 
enter the  said  premises,  and  to  remove  all  persons  therefrom. 

And  the  said  party  of  the  second  part  does  hereby  covenant  to 
pay  to  the  said  party  of  the  first  part  the  said  rent  herein  re- 
served in  the  manner  herein  specified.  And  not  to  make  or  suffer 
any  alteration  to  be  made  therein,  without  the  written  consent 
of  the  said  party  of  the  first  part;  and  not  to  assign  this  lease 


238  Ne;\v  Book  of  Forms, 

without  the  written  consent  of  the  said  party  of  the  first  part. 
And  that  at  the  expiration  of  the  said  term,  or  any  sooner  deter- 
mination of  this  lease,  the  said  party  of  the  second  part  will  quit 
and  surrender  the  premises  hereby  demised,  in  as  good  order  and 
condition  as  reasonable  use  and  wear  thereof  will  permit,  dam- 
ages by  the  elements  excepted.  And  if  the  party  of  the  second 
part  shall  hold  over  the  said  term  with  the  consent,  expressed  or 
implied,  of  the  party  of  the  first  part,  such  holding  shall  be  con- 
strued to  be  a  tenancy  only  from  month  to  month. 

No,  309. — Crop  Lease — Farming  Lease  on  Shares. 

This  Indenture,  made  the  thirteenth  day  of  May,  1905,  be- 
tween P.  M.  P.,  of  the  county  of  San  Mateo,  state  of  California, 
the  party  of  the  first  part,  and  W.  H.,  of  said  city  and  county, 
the  party  of  the  second  part,  witnesseth : 

That  the  said  party  of  the  first  part  for  and  in  consideration 
of  the  rents,  covenants,  and  agreements  hereinafter  mentioned, 
reserved  and  contained  on  the  part  and  behalf  of  the  said  party 
of  the  second  part,  his  executors,  administrators,  and  assigns,  to 
be  paid,  kept,  and  performed,  has  granted,  demised,  and  to  farm 
let,  and  by  these  presents  does  grant,  demise,  and  to  farm  let, 
unto  the  said  party  of  the  second  part,  his  executors,  adminis- 
trators, and  assigns,  all  [description]. 

To  have  and  to  hold  the  said  demised  premises,  unto  the  party 
of  the  second  part,  his  heirs,  executors  and  administrators,  for 
his  and  their  sole  and  proper  use  and  benefit,  for  and  during  the 
term  aforesaid,  together  with  all  the  tenements  and  hereditaments 
thereunto  appertaining,  and  all  the  stock  and  farming  utensils, 
of  every  name  and  nature,  now  being  in  or  upon  the  same,  be- 
longing to  the  said  party  of  the  first  part. 

In  consideration  whereof,  the  said  party  of  the  second  part 
hereby  covenants  and  agrees  to  and  with  the  party  of  the  first 
part,  that  he  will  occupy,  till  and  in  all  respects  cultivate  the 
premises  above  mentioned,  during  the  term  aforesaid,  in  a  farm- 
erlike manner,  and  according  to  the  usual  course  of  farming  prac- 
ticed in  the  neighborhood;  that  he  will  not  commit  any  waste 
or  damage,  or  suffer  any  to  be  done ;  that  he  will,  at  his  own  cost 
and  expense,  keep  the  fences  and  buildings  on  the  said  premises  in 
good  repair,  reasonable  wear  thereof  and  damages  by  the  ele- 
ments excepted ;  and  that  he  will  deliver  to  the  said  party  of  tlie 
first  part,  his  heirs,  executors,  or  administrators,  or  to  his  or  their 
order,  one  equal  third  of  all  the  proceeds  and  crops  produced  on 
the  said  farm  and  premises  aforesaid,  of  every  name,  kind  and 
description,  to  be  divided  on  the  said  premises,  in  stack  and  sack, 
according  to  the  usual  course  and  custom  of  making  such  divi- 
sions in  the  neighborhood,  and  in  a  seasonable  time  after  such 
crop  shall  have  been  gathered  and  harvested. 


Lease.  239 

It  is  further  understood  and  agreed  between  the  aforesaid  par- 
ties, that  the  party  of  the  second  part  shall  find  all  seed  or  seeds 
necessary  to  be  sown  on  said  premises,  and  said  second  party  pay 
all  taxes  and  assessments  upon  the  same ;  that  the  party  of  the 
second  part  is  to  do,  or  cause  to  be  done,  all  necessary  work  and 
labor  in  and  about  the  cultivation  of  the  said  premises;  that  he 
is  to  have  full  permission  to  inclose,  pasture,  or  till  and  cultivate, 
the  said  premises,  so  far  as  the  same  may  be  done  without  injury 
to  the  reversion,  and  to  ait  all  necessary  timber  for  firewood, 
farming  purposes,  and  repairing  fences ;  and  that  he  is  to  give 
up  and  yield  peaceable  possession  of  the  said  premises  at  the 
ejcpiration  of  said  term. 

Said  first  party  shall  furnish  on  said  premises  at  the  proper 
time,  sacks  sufficient  to  hold  all  the  grain  coming  to  said  first 
party. 

No.  310. — Lease  of  a  House — Ironclad. 

This  Indenture,  made  and  agreed  on  this  jd  day  of  May, 
1908,  between  A.  B.  c>f  Dutch  Flat,  Esquire,  of  the  one  part,  and 
C.  D.  of  Dog  Town,  gentleman,  of  the  other  part,  witnesseth, 
that  for  and  in  consideration  of  the  rents,  covenants,  provisos, 
and  agreements  hereinafter  reserved  and  contained,  and  which  on 
the  part  and  behalf  of  the  said  C.  D.,  his  executors,  administra- 
tors, and  assigns,  are  to  be  paid,  done,  and  performed,  he,  the 
said  A.  B.,  hath  demised,  leased,  set,  and  to  farm  letten,  and 
by  these  presents  doth  demise,  etc.,  unto  the  said  C.  D.,  his  execu- 
tors, administrators,  and  assigns,  all  that  tenement,  situate  in  S. 
(kno-ivn  by  the  name  of  "The  Palace"),  now  or  lately  in  the 
tenure  or  occupation  of  B.  F.,  together  with  all  shops^  cellars, 
easements,  passages,  ways,  profits,  commodities,  and  appurte- 
nances whatsoever,  to  the  said  tenement  belonging  or  in  any  wise 
appertaining.  To  have  and  to  hold  the  said  tenement,  and  all 
and  singular  the  premises,  hereby  demised,  with  the  appur- 
tenances, unto  the  said  C.  D.,  his  executors,  administrators,  and 
assigns,  from  the  day  of  the  date  hereof,  for  and  during  the 
full  term  of  ten  years  next  ensuing,  and  fully  to  be  complete  and 
ended,  yielding  and  paying  therefor  yearly,  on  every  first  dav  of 
May,  during  the  said  term,  unto  the  said  A.  B.,  his  heirs  or 
assigns,  the  yearly  rent  of  $5,000. 

No.     311. — Lease — Ironclad     Covenant — Landlord    may    Re- 
enter, When. 

{Proviso  ghnng  lessor  pozvcr  to  enter  on  nonpavmcnt,  or  assi^-'n- 
mcnt  without  license.] 
Provided  always,  nevertheless,  that  if  it  shall  happen  that  the 
said  yearly  rents  hereby  reserved,  or  either  of  them,  shall  be  be- 
hind and  unpaid,  by  the  space  of  twenty  days  next  after  either  of 


240  New  Book  of  Forms. 

the  said  days  of  payment,  or  if  the  said  C.  D.  his  executors  or  ad- 
ministrators, shall  assign  over,  or  otherwise  depart  with  this  in- 
denture, or  the  premises  hereby  leased,  or  any  part  thereof,  to 
any  person  or  persons  whatsover,  without  the  consent  of  the  said 
A.  B.,  his  heirs  or  assigns,  first  had  and  obtained,  in  writing 
under  his  or  their  hands,  for  that  purpose,  then,  and  in  either 
of  the  said  cases,  it  shall  and  may  be  lawful  to  and  for  the  said 
A.  B.,  his  heirs  or  assigns,  into  the  said  premises  hereby  leased, 
or  any  part  thereof  in  the  name  of  the  whole,  to  re-enter,  and 
the  same  to  have  again,  retain,  repossess  and  enjoy,  as  his  and 
their  first  and  former  estate  or  estates,  anything  herein  contained 
to  the  contrary  thereof,  in  any  wise  notwithstanding. 

No.  312. — Lease — Ironclad  Covenant  to  Pay  Rent. 

And  the  said  C.  D.  doth  hereby  for  himself,  his  heirs,  execu- 
tors, administrators  and  assigns,  covenant,  promise  and  agree,  to 
and  with  the  said  A.  B.,  his  heirs  and  assigns,  in  manner  follow- 
ing, that  is  to  say,  that  he,  the  said  C.  D.,  his  executors,  adminis- 
trators or  assigns,  shall  and  will  well  and  truly  pay,  or  cause  to 
be  paid,  unto  the  said  A.  B.,  his  heirs  and  assigns,  the  said  yearly 
rent  of  $5,000,  in  the  manner  hereinbefore  limited  and  appointed, 
according  to  the  reservation  thereof,  and  the  true  intent  and 
meaning  of  these  presents  [except  the  premises,  or  some  part 
thereof,  shall  happen  to  be  burned  dozvn,  blown  up,  or  damniHed, 
by  reason  of  fire  or  tempest,  or  unavoidable  accident].* 

No.  313. — Lease — Ironclad  Covenant  to  Repair. 

Provided,  also,  nevertheless,  that  C.  D.  will  at  his  proper  costs 
and  charges,  from  time  to  time,  and  at  all  times  during  said 
term,  well  and  sufficiently  repair,  uphold,  support,  sustain,  main- 
tain, pave,  purge,  scour,  cleanse,  glaze,  empty,  amend  and  keep 
said  premises,  with  the  appurtenances,  hereinbefore  let  or  de- 
mised, and  every  part  and  parcel  thereof,  in,  by,  and  with  all,  and 
all  manner  of,  needful  and  necessary  reparations,  supporting, 
paving,  purging,  scouring,  cleansing,  glazing,  emptying,  and 
amendments  whatsoever,  and  that  when,  where,  and  as  often  as 
need  or  occasion  shall  be  and  require  (the  casualty  of  fire,  which 
may  consume,  burn  down,  or  burn  up  and  destroy,  the  said  prem- 
ises or  any  part  thereof  only  excepted). 

jslo.  314. — Lease — Ironclad  Covenant  that  Lessor  may  Enter. 

And  further,  that  it  shall  be  lawful  to  and  for  the  said  A.  B., 
his  executors,  etc.,  or  any  of  them,  with  workmen  or  others,  or 


•If  this   clatise  is  omitted,  the  lessee  will  be  oblig'ed  to  pay  rent   dur- 
ing the  term  although  the  premises  are  burned  down. 


Leas^.  241 

without,  twice  in  every  year,  during  the  continuance  of  this 
lease,  at  seasonable  times  in  the  daytime,  to  enter,  come  in,  and 
upon  the  said  premises,  or  any  part  thereof,  and  view,  search  and 
see  the  state  and  condition  of  the  reparations  of  the  same,  and  of 
all  defects,  defaults  and  want  of  repairs,  then  and  there  found, 
to  lease  or  give  notice  or  warning  in  writing,  at  and  upon  said 
premises,  to  and  for  said  C.  D.,  for  the  repairing  and  amending 
the  same  within  the  space  of  one  month  then  next  following,  in 
which  said  space  of  time,  etc.,  after  every  or  any  such  notice  or 
warning,  he,  the  said  C.  D.,  for  himself,  his  executors,  etc.,  doth 
hereby  covenant,  etc.,  to  and  with  the  said  A.  B.,  his  executors, 
etc.,  well  and  sufficiently  to  repair  and  amend  the  defects  and 
want  of  reparation  so  to  be  found  as  aforesaid. 


No.   315. — Lease — Ironclad   Covenant  for   Quiet   Enjoyment. 

And  the  said  A.  B.,  for  himself,  his  heirs,  executors,  adminis- 
trators and  assigns,  doth  covenant,  promise,  and  agree,  to  and 
with  the  said  C.  D.,  his  heirs,  executors,  administrators  and  as- 
signs, that  is,  the  said  C.  D.,  his,  etc.,  paying  the  said  rent  above 
hereby  reserved,  and  observing,  performing  and  keeping  all  and 
singular  the  covenants,  clauses,  articles,  and  agreements  herein 
contained,  on  his  or  their  part  to  be  observed,  fulfilled  and  kept, 
according  to  the  true  intent  and  meaning  of  these  presents,  shall 
and  may  lawfully,  peacefully,  and  quietly  have,  hold,  use,  occupy, 
possess  and  enjoy  said  premises,  etc.,  hereby  leased  with  the  ap- 
purtenances, and  every  part  and  parcel  thereof,  for  and  during 
all  said  term  of  tzventy  years,  hereby  granted,  without  any  let, 
suit,  hindrance,  eviction,  ejection,  molestation,  or  interruption 
whatsoever,  of  or  by  the  said  A.  B.,  or  his  heirs,  etc.,  or  of  or  by 
any  other  person  or  persons  whatsover,  lawfully  claiming  or  to 
claim  by,  from,  or  under  them,  or  any  or  either  of  them. 


No.  316. — Lease — Ironclad  Covenant  that  Lessee  may  Quit. 

It  is  hereby  agreed,  by  and  between  all  the  parties  to  these 
presents,  that  in  case  the  said  C.  D.,  his  heirs,  executors  or  ad- 
ministrators, shall  be  minded  or  desirous  to  quit  and  lease  said 
leased  premises  at  the  expiration  of  the  first  fn^e  years  of  the  first 
ten  years  of  said  term  of  tzvclve  years  hereby  granted,  and  shall 
give  notice  in  writing,  of  such  his  or  their  minds  or  intentions, 
upon  the  said  A.  B.  or  his  heirs,  etc.,  six  months  before  the  end 
and  expiration  of  said  ^rst  five  years  of  said  term  of  tzvelvc  years, 
then  and  at  the  end  of  said  first  five  years  of  said  term  of  twelve 
years  hereby  granted,  this  present  indenture  of  lease,  and  the 
term  hereby  granted,  shall  cease,  determi-ic,  and  be  utterly  void. 
New  Forms — 16 


242  New  Book  of  Forms. 

anything  herein  contained  to  the  contrary  thereof  in  any  wise 
notwithstanding. 

No.  317. — Lease — Ironclad  Covenant  to  Deliver  Possession. 

And  the  said  premises  being  so  well  and  sufficiently  repaired, 
upheld,  etc.  [as  in  No.  313]  at  the  end  of  the  term,  or  sooner 
determination  of  this  present  lease  unto  the  said  A.  B.,  his  heirs 
or  assigns,  shall  and  will,  peacefully  and  quietly,  leave  and  yield 
up,  except  as  hereinbefore  excepted. 

No.  318. — Lease — Covenant  Determining  Lease  at  Option  of 

Lessor. 

Provided,  always,  nevertheless,  that  if  said  A.  B..  or  his  as- 
signs, shall  at  any  time  during  said  term  tender  to  said  C.  D.,  or 
his  assigns,  one  dollar  with  an  intent  to  determine  this  lease,  then 
this  lease  shall  wholly  cease  and  determine  from  the  time  of  such 
tender,  in  like  manner,  to  all  intents  and  purposes  whatever,  as 
if  said  term  of  three  years  were  fully  complete  and  ended.  Pro- 
vided said  C.  D.  shall  have  thirty  days'  time  after  said  tender 
to  remove  from  said  premises. 

No.  319. — Lease — Covenant  Determining  Same. 

Provided  always,  nevertheless,  that  if  the  said  C.  D.  or  his  as- 
signs shall  at  any  time  during  said  term  tender  to  A.  B.,  lessor, 
one  year's  rent  of  said  premises,  with  intent  to  determine  this 
lease,  then  it  shall  cease  and  determine  from  the  time  of  said 
tender. 

No.    320. — Lease — Covenant   to    Purchase    Premises. 

Provided  always,  nevertheless,  that  if  said  C.  D.,  or  his  assigns, 
at  any  time  during  said  term,  or  within  50  days  after  the  expira- 
tion of  said  lease,  shall  be  minded  to  purchase  the  leased  prem- 
ises for  the  sum  of  $^^.000  in  gold  coin  of  the  United  States,  and 
shall  tender  said  amount  to  said  A.  B.,  together  with  all  rent  due 
up  to  the  time  of  said  tender,  then  this  lease  is  by  said  tender  de- 
termined, and  the  said  A.  B.  will  on  the  same  day  make,  acknowl- 
edge and  deliver  to  said  C.  D.  or  his  grantee  a  grant  of  said 
premises. 

No.    321. — Lease — Covenant   not   to   Assign,    Underlet,   Alter 

or  Improve. 

And  the  said  A.  C.  agrees  not  to  assign  this  lease,  nor  to  im- 
prove nor  permit  any  other  person  to  improve  said  premises,  or 
to  make  or  permit  any  other  person  to  alter  any  part  or  the  whole 
of  said  premises  without  the  lessor's  consent  in  writing  first 
obtained. 


Lease.  243 


No.   322. — Lease — Covenant  as  to  Holding   Over. 

And  if  the  said  party  of  the  second  part  shall  hold  over  said 
term,  with  the  consent,  expressed  or  implied,  of  the  partv  of  the 
first  part,  such  hoidinp^  shall  be  construed  to  be  a  tenancy  onlv, 
from  month  to    month. 

No.  323. — Lease — Covenant  as  to  Taxes. 

And  it  is  hereby  ag-rced  that  the  said  A.  C.  will,  as  additional 
rent,  pay  and  discharge  all  taxes  and  assessments  which  may  be- 
levied  during  said  term  upon  said  premises. 

No.  324. — Covenant — Exception  of  Timber,  etc. 

Except,  and  always  reserved,  out  of  this  present  lease,  all  tim- 
ber and  all  other  trees  whatsoever,  which  now  are,-  or  at  anv  tim.e 
hereafter  shall  be  standing  and  being  in,  upon  and  about  the 
said  leased  premises,  or  any  part  thereof,  with  free  libertv  of  in- 
gress, to  and  for  the  said  A.  A.,  his  heirs  and  assigns,  servants 
and  workmen,  from  time  to  time,  and  at  all  times  during  the  term 
hereby  leased,  the  same  to  fell,  stock  up,  cut  down,  hew  and 
carry  away,  in  and  through  the  said  leased  premises,  or  any  part 
thereof  (doing  no  willftd  hurt  or  damage  to  the  grain  and  grass 
of  the  said  B.  B..  his  exeaitors,  administr?tnrs  and  assigns),  at 
all  times  during  the  term  hereby  leased,  and  fr^e  libertv  to  enter 
into  and  upon  the  said  premises,  and  every  part  thereof,  to  view 
the  condition  of  the  repairs  thereof. 

No.  325. — Covenant  to  Repair,  the  Lessor  Finding  Materials. 

Also  that  he,  the  said  B.  B.,  his  executors,  administrators  and 
assigns  shall,  and  will,  at  his  and  their  own  costs,  well  and  suffi- 
ciently repair.  iTiaintain  and  keep  in  repair  the  said  tenement 
and  all  other  buildings,  hedges,  and  fences  belonging  to  the  said 
premises,  and  he,  the  said  A.  A.,  will  permit  the  said  B.  B.,  his 
heirs  and  assigns,  to  take  from  said  premises  all  necessary  mate- 
rials for  said  repairs. 

No.  326. — Lessee  Covenants  not  to  Burn  the  Straw,  etc 

And  further,  that  the  said  B.  B.,  his  executors,  administrators 
and  assigns,  shall  not.  at  any  time  or  times,  dtiring  the  last  hvo 
years  of  the  said  term.  sell,  give  away,  or  otherwise  dispose  of,  any 
of  the  straw  which  shall  be  growing  and  arising  upon  the  said 
leased  premises,  and  shall  not  burn  any  straw,  except  for  the  use 
of  their  own  families,  etc. 


244  New  Book  of  Forms. 

No.  327. — Lessee  Covenants  not  to  Lop  the  Trees,  etc. 

And  that  the  said  B.  B.,  his  executors,  etc.,  shall  not  nor  will, 
at  any  time  or  times  during  the  time  hereby  leased,  lop  or  cut 
any  of  the  trees  or  wood  belonging  to  the  said  premises,  but  such 
wood  as  has  been  usually  lopped  and  cut  by  the  former  and  other 
tenants,  and  those  only  of  tzvelve  years'  growth,  and  the  lops 
which  shall  arise,  and  come  therefrom,  not  to  be  sold  or  disposed 
of,  in  any  other  way,  and  shall  not,  at  any  time  during  this  lease, 
inordinately  bum  or  waste  any  of  the  firewood  which  is  so  al- 
lowed to  be  used,  and  shall  keep  the  said  trees,  as  also  all  the  fruit 
trees  and  wood,  from  all  willful  or  negligent  hurt  or  waste. 

No.  328, — Lessee  Covenants    to  Build    One  or    More    Brick 

Buildings,   etc. 

And  that  he,  the  said  C.  D.,  his  executors,  administrators,  or  as- 
signs, will,  before  the  expiration  of  the  iirst  year  of  the  said 
term,  at  his  and  their  own  costs,  build  and  complete  in  a  work- 
manlike manner,  finish  one  or  more  good  and  substantial  brick 
tenements,  upon  some  part  of  the  ground  hereby  demised,  and 
shall  and  will  lay  out  and  expend  therein  the  sum  of  $5,000  or 
upward ;  and  also  that  he,  the  said  C.  D.,  his  executors,  etc.,  shall, 
and  will  from  time  to  time,  and  at  all  times  from  and  after  the 
said  tenement,  erections  and  buildings  on  the  said  piece  of  ground 
hereby  demised,  shall  be  respectively  completed  and  finished,  dur- 
ing the  remainder  of  the  said  term  when,  where  and  as  oiten  as 
need  or  occasion  shall  be  and  require,  at  his  and  their  own  costs 
and  charges,  well  and  sufficiently  repair,  maintain  and  keep  the 
said  tenements,  erections  and  buildings  and  all  the  ivalls,  rails, 
lights,  pavements,  grates,  privies,  sinks,  drains,  and  zvatercoiirses 
thereunto  belonging  and  which  shall  belong  to  the  same,  in,  by 
and  with  all,  and  all  manner  of,  needful  and  necessary  repara- 
tions, cleansings,  and  amendments  whatsoever. 

No.  329. — Lessee  Covenants  not  to  Carry  on  Any  Offensive 

Trades. 

And  that  he,  the  said  C.  D.,  etc.,  shall  not,  nor  will,  during  the 
said  term,  permit  or  suffer  any  person  or  persons  to  use,  exer- 
cise, or  carry  on,  in  and  by  the  said  hereby  demised  premises,  or 
any  part  thereof,  any  trade  or  business  which  may  be  nauseous 
or  oifensive,  or  grow  to  the  annoyance,  prejudice  or  disturbance 
of  any  of  the  other  tenements  of  the  said  A.  B.  near  or  adjoin- 
ing thereto. 

No.  330. — Lessee  Covenants  to  Insure  at  His  Own  Expense. 

And  that  he,  the  said  C.  D.,    his  exeaitors,  etc.,  shall  and  will, 

at  his  and  their  own  costs  and  charges,  from  time  to  time,  suffi- 


Lease.  245 

cientJy  insure  all  and  ever>'  the  tenements,  erections,  and  build- 
ings, which  shall  be  erected'  and  built  upon  the  said  piece  or  par- 
cel of  ground  hereby  demised,  or  any  part  thereof,  from  casual- 
ties by  fires  during  the  then  remainder  of  the  said  term  hereby 
granted,  in  the  M.  A.  L.  &  T.  Association,  and  in  case  the  said 
buildings,  or  any  of  them,  or  any  part  of  any  of  them,  shall  at 
any  time  or  times  during  the  said  term  be  burned,  destroyed,  or 
damaged  by  fire,  shall  and  will,  from  time  to  time,  immediately  af- 
terward, rebuild,  or  well  and  sufficiently  repair  the  same. 

No.  331. — Lessee  Covenants  that  Lessor  may  Enter  to  Make 
an  Inventory,  etc. 

And  further,  that  it  shall  and  may  be  lawful  for  the  said  A.  B., 
his  heirs  and  assigns,  or  any  of  them,  with  workmen  or  others  in 
his  company,  to  enter  upon  the  said  premises,  and  every  part 
thereof,  at  seasonable  and  convenient  times  in  the  dav,  at  any 
time  during  the  last  five  years  of  the  said  term,  to  make  an  in- 
ventory of  the  several  fixtures  and  things,  then  standing  and  be- 
ing in  and  upon  the  said  hereby  demised  premises,  which  are  to 
be  left  at  the  end  of  the  said  term  for  the  use  of  the  said  A.  B., 
his  heirs  and  assigns,  pursuant  to  the  covenant  hereinbefore  in 
that  behalf  contained,  as  also  twice  or  oftencr  in  every  year,  dur- 
ing the  said  term,  to  view,  search,  and  see  the  defects,  and  want 
of  reparations  which,  upon  every  or  any  such  view  or  search,  shall 
be  from  time  to  time  found,  to  give  or  leave  notice  or  warning 
thereof  in  writing,  at  or  upon  the  said  demised  premises,  unto 
and  for  the  said  C.  D.,  his  executors,  administrators  or  assigns, 
to  repair  and  amend  the  same. 

No.  332. — Lessee  Covenants  to  Repair. 

And  that  the  said  C.  D.,  his,  etc.,  shall  and  will  within  three 
montJxs  next  after  every  such  notice  or  warning  shall  be  given 
or  left,  at  his  and  their  own  costs,  well  and  sufficiently  repair, 
amend,  and  make  good  all  and  every  the  defects,  and  want  of 
reparations,  whereof  such  notice  or  warning  shall  be  so  given  or 
left  as  aforesaid. 

No.  333. — A  Short  Agreement  for  Letting  a  House  for  One 
Year  Certain,  and  for  Such  Further  Time  as  Both  Parties 
shall  Agree. 

Agreed  the  ^d  day  of  June,  between,  etc..  the  said  /.  B.,  doth 
let  unto  the  said  /.  P.,  and  he  takes,  all  that,  etc.,  for  one  year 
from,  etc..  and  for  such  longer  time  after  the  expiration  of  the 
said  one  year,  as  both  the  said  parties  shall  agree,  and  until  the 
end  of  three  months  after  notice  shall  be  given,  by  either  of  the 


246  New  Book  of  Forms. 

said  parties  to  the  other  of  them,  for  leaving  the  said  premises, 
at,  etc.,  for  the  yearly  rent  of,  etc.,  lawfully,  etc.,  to  be  paid  quar- 
terly on,  etc.,  by  even  and  equal  portions,  which  said  yearly  rent 
the  said  /.  P.  doth  hereby  for  himself,  his  executors  and  admin- 
istrators, covenant  and  agree  to  pay  to  the  said  /.  P.  accordingly, 
for  so  long  time  as  he  shall  hold  and  enjoy  the  said  premises  as 
aforesaid,  and  until  the  end  of  the  said  three  months  next  after 
notice  shall  be  given  by  either  of  the  said  parties,  to  the  other  of 
them,  for  leaving  the  said  premises  as  aforesaid. 


No,  334. — A  Short  Lease  by  Way  of  Memorandum. 

Memorandum,  that  K.  D.,  Esq.,  leased  to  R.  S.  the  tenement  in 
A',  street  in  A.  K.,  in  which  the  said  K.  D.  lately  dwelt,  to  hold 
for  one  year  from  the  ^d  of  June  next  ensuing,  and  so  from  year 
to  year ;  yielding  and  paying  yearly,  and  every  year,  unto  the  said 
K.  D.  the  sum  of  $1,000  by  four  even  and  equal  payments,  the 
first  payment  to  he  mcule  on,  etc.,  the  second  payment  on,  etc., 
tn  every  year.  And  the  said  K.  D.  did  agree  to  repair  tlic  prem- 
ises, other  than  the  glass  windows,  thereof  and  pales  beiore  the 
door ;  and  the  said  R.  S.  did  agree  to  repair  the  windows  during 
the  term;  and  the  said  K.  D.  did  agree  that  R.  S.  might  retain 
the  first  quarter's  rent,  laying  it  out  in  painting  the  outside  of  the 
said  house,  and  the  overplus  (if  any)  otherwise  in  and  about  the 
said  house;  and  further,  that  the  said  R.  S.  might  enter  at  any 
time  before  midsummer.  Provided,  that  if  either  of  the  said 
parties,  their  executors  or  administrators,  should  be  minded  to 
determine  the  said  lease,  and  thereof  should  leave  and  give  notice 
in  writing  to  the  other,  his  executors  or  administrators,  one  quar- 
ter of  a  year  before  the  end  of  any  year,  then  and  from  the  end  of 
the  same  year  the  said  lease  should  detenuine  and  be  void. 

No.  335. — A  Lease  to  Enable  One  to  Bring  an  Ejectment. 

This  Indenture,  made,  etc.,  between  T.  H.,  of  A.  B.,  of  the 
one  part,  and  /.  P.  of  A.  B.,  of  the  other  part,  witnesseth,  that 
the  said  T.  H.,  for  divers  good  causes  and  considerations  him 
hereunto  moving,  hath  demised,  and  to  farm  let,  and  by  these 
presents,  doth,  etc.,  unto  the  said  /.  P.,  all  that,  etc.,  to  have  and 
to  hold  the  said,  etc.,  unto  the  said  /.  P.  from  the  jd  day  of 
June,  ipo^,  now  last  past,  for  and  during,  and  unto  the  full  end 
and  term  of  five  years,  from  thence  next  ensuing,  and  fully,  etc., 
yielding  and  paying  therefor,  yearly  and  every  year,  during  the 
said  term,  unto  the  said  T.  H.,  his  executors,  administrators  and 
assigns,  one  dollar.  To  the  intent  and  purpose,  that  the  said  /. 
P.  may  be  and  become  forthwith  the  tenant  of  the  said  T.  H.,  in 
order  that  an  ejectment  may  be  brought  by  him  as  plaintiff,  for 


L^ASfi.  247 

the  recovery  of  the  possession  thereof,  for  the  said  T.  H.  against 
/.  D.,  as  the  casual  ejector.     In  witness,  etc 

No.  336. — An  Indenture  for  Gantinuing  a  Lease  for  a  Longer 
Term,  After  the  Expiration  of  the  Present. 

And  it  is  hereby  declared  and  agreed,  by  and  between  the  said 
parties  to  these  presents,  that  they  and  their  respective  heirs,  ex- 
ecutors, administrators  and  assigns,  shall  and  will  by  these  pres- 
ents, during  the  additional  term  of  10  years  hereby  granted,  stand 
and  be  bound,  for,  and  in  respect  of,  the  said  hereby  demised 
premises,  with  the  appurtenances,  in  such  and  like  covenants, 
conditions,  and  agreements,  respectively,  as  they,  the  said  parties, 
ana  ilKJr  respective  heirs,  executors,  administrators  and  assigns, 
do  now  stand  bound,  in  and  by  the  said  within  lease,  for  and  dur- 
ing the  now  residue  unexpired  of  the  within  mentioned  term 
hereby  granted ;  it  being  the  intent  and  meaning  hereof  tliat  this 
present  indorsed  lease,  and  the  additional  term  hereby  granted, 
shall  be  upon  such  and  the  like  footing,  and  all  the  covenants, 
clauses,  conditions,  and  agreements,  respectively  therein  contained, 
be  equally  available,  take  place,  and  have  the  like  force  and  ef- 
fect, to  all  intents  and  purposes,  as  if  every  article,  clause,  mat* 
ter,  and  thing  contained  in  the  said  within  lease  were  inserted  and 
contained  in  this  present  indenture.  *' 

No.  337. — Habendum  and  Tenendum  of  a  Lease  for  Lives  and 

Years. 

To  have  and  to  hold  the  said  messuage  or  dwelling-house,  and 
all  and  singular  other  the  premises  hereby  demised  or  mentioned 
or  intended  so  to  be,  with  their  and  every  of  their  appurtenances, 
unto  the  said  W.  P.,  his  executors,  administrators,  and  assigns, 
from  henceforth,  for  and  during  the  natural  life  and  lives  of  him, 
the  said  W.  P.,  aged  about  p  years,  of  £.  P.,  his  daughter,  aged 
about  8  years,  and  T.  P.,  his  son,  aged  about  6  years,  and  of  the 
survivor  or  longer  liver  of  them,  and  for  and  during  the  further 
term  of  10  years,  to  commence  from  and  immediately  after  the 
cieath  of  the  survivor  of  them,  the  said  IV.  P.,  £.  P.,  and  T.  P., 
and  from  thenceforth  next  ensuing  and  fully  to  be  complete  and 
ended,  to  and  for  all  tenancy  uses  whatsoever  (willful  waste  ex- 
cepted), yielding  and  paying  therefor,  etc. 

No.  338. — Proviso  Empowering  Lessor  to  Enter  for  Nonpay- 
ment of  Rent  or  Commission  of  Waste,  etc. 

Provided  always,  these  presents  are  upon  this  express  condi- 
tion, that  if  tlie  said  yearly  rent  or  sum  of  $T,noo.  or  any  pirt 
thereof,  shall  be  behind  and  unpaid  by  the  space  of  50  days  next 


248  New  Book  of  Forms. 

after  the  said  days  of  payment,  whereon  the  same  is  appointed  to 
be  paid  as  aforesaid,  or  if  the  said  JV.  P.,  his  executors,  admin- 
istrators, or  assigns,  shall  do,  or  wittingly  or  willingly  commit, 
or  suffer  to  be  done  or  committed,  any  willful  or  voluntary  waste 
in  or  upon  the  said  premises,  or  any  part  thereof  (except  the 
pulling  down  of  old  buildings  in  order  to  rebuild  the  same),  that 
then,  and  in  either  of  the  said  cases  it  shall  and  may  be  lawful  to 
and  for  the  said  S.  W.,  his  heirs  and  assigns,  into  and  upon  the 
said  premises,  or  any  part  thereof  in  the  name  of  the  whole,  wholly 
to  re-enter,  and  the  same  to  have  again,  repossess  and  enjoy,  as 
in  his  and  their  former  estate,  anything  herein  contained  to  the 
contrary  thereof,  in  any  wise  notwithstanding. 

No.  339. — A  Proviso  for  Either  the  Lessee  or  Lessor,  to  Deter- 
mine a  Lease  on  Giving  Notice  Six  Months  Before. 

Provided  always,  and  these  presents  are  upon  this  condition, 
nevertheless,  that  it  shall  and  may  be  lawful,  to  and  for  either  the 
said  E.  R.,  his  heirs  or  assigns,  or  the  said  B.  S.,  her  executors, 
administrators  or  assigns,  to  determine  and  make  void  this  lease, 
at  the  expiration  of  the  first  five  or  ten  years  of  the  said  term  of 
twenty  years  hereby  granted,  on  causing  notice  or  warning  in 
writing  for  that  purpose,  to  be  given  to,  or  left  for  the  other  of 
them,  his  or  her  heirs,  executors,  administrators  or  assigns,  at 
his  or  their  usual  or  last  place  of  abode,  six  calendar  months  at 
least  before  the  time  limited  for  determining  the  same  as  afore- 
said, anything  herein  contained  to  the  contrary,  thereof,  in  any 
wise  notwithstanding. 

No.  340. — A  Proviso  Making  Void  a  Lease  in  Case  of  Death 

of  Lessee. 

Provided  always,  and  these  presents  are  upon  this  condition 
nevertheless,  that  if  the  said  M.  S.  shall  happen  to  die  at  any  time 
during  the  term  hereby  demised,  and  the  executors,  administra- 
tors or  assigns  of  the  said  M.  S.  shall  at  any  time  after  the  ex- 
piration of  the  first  three  years  of  the  said  term  of  sez-en  years 
hereby  demised  be  minded  and  desirous  to  quit  and  leave  the  said 
demised  premises,  and  of  such  his  mind  and  intention,  shall,  on 
any  day  after  the  expiration  of  the  said  three  years,  give  or  leave 
six  months'  warning  in  writing,  to  or  for  the  said  C.  D.,  his  ex- 
ecutors, administrators  or  assigns,  having  first  paid  the  rent  and 
performed  and  kept  all  and  singular  the  covenants,  provisos,  and 
agreements  herein  contained,  on  his  or  their  part  to  be  paid, 
done,  and  performed,  then,  and  in  such  case,  at  the  expiration  of 
the  said  six  months  (such  notice  having  been  first  given  as  afore- 
said), these  presents,  and  the  term  hereby  granted,  as  for  any  fu- 


Lease;.  249 

tare  contmnance,  shall  cease,  determine  and  be  utterly  void,  any- 
thing herein  contained  to  the  contrary  tliereof,  in  any  wise  not- 
withstanding. 

Na  341. — The  Lessor  Covenants  to  Sell  the  Inheritance  to 
the  Lessee,  on  Request, 

And  in  case  the  said  C.  D.  (the  lessee),  his  heirs,  exeaitors, 
administrators,  or  assigns  shall,  during  the  said  term,  be  desirous 
to  purchase  the  inheritance  of  the  premises  hereby  demised,  and 
shall  give  notice  of  such  intention  or  desire,  in  writing,  during 
the  same  term,  unto  the  said  A.  B.  (the  lessor),  his  heirs  or  as- 
signs, at  his  or  their  usual  place  of  abode,  then  he,  the  said  A.  B., 
his  heirs  and  assigns,  shall  and  will  at  any  time  during  the  said 
term^  at  the  charges  in  the  law  of  the  said  C.  D.,  his  heirs,  execu- 
tors, administrators  or  assigns,  convey  and  assure  the  inheritance 
of  the  said  hereby  demised  premises,  unto  the  said  C.  D.,  his 
heirs,  executors,  administrators  or  assigns,  and  to  the  heirs  and 
assigns  of  him,  or  them,  or  as  he  or  tliey  shall  direct ;  he,  the  said 
C.  D.,  his  heirs,  executors,  etc.,  paying  unto  the  said  A.  B.,  his 
heirs  or  assigns,  the  sum  of  $10,000,  as  the  consideration  of  such 
purchase,  and  also  paying  to  him  or  them  all  arrears  of  rent  which 
shall  be  then  due,  etc 

No.  342. — Lessee  not  to  Permit  Noxious  Trades  to  be  Car- 
ried on. 

And  also  that  he,  the  said  B.  H.,  his  executors,  administrators, 
and  assigns,  shall  not  nor  will,  at  any  time  during  the  continu- 
ance of  the  said  term  hereby  granted,  permit  or  suffer  any  person 
or  persons  to  use  or  follow,  in  or  upon  the  said  hereby  demised 
tenement  and  premises,  or  in  or  upon  any  part  thereof,  the  trade 
of  butcher,  currier,  soap-boiler,  brewer,  distiller,  tallow-chandler, 
tinman,  dyer,  founder,  smith,  or  any  nauseous  or  offensive  busi- 
ness whatsoever,  without  the  license  and  consent  of  the  said  F. 
W-,  his  heirs,  executors,  administrators,  or  assigns,  first  had  and 
obtained  in  writing  for  that  purpose. 

No.  343. — To  Inhabit  Part  of  the  Premises. 

And  also  that  they,  the  said  C.  D.  and  E.  G.,  etc.,  some  or  one 
of  them,  shall  and  will  personally  inhabit  and  occupy  the  said 
farmhouse,  with  the  appurtenances,  with  their,  some,  or  one  of 
their  families,  and  not  shut  up  or  desert  the  same  during  the  said 
term. 

No.  344. — Not  to  Assign  or  Underlease  without  License. 

And  also  that  they,  the  said  C.  D.  and  £.  G.,  their  executors 
and  administrators,  shall  not  nor  will,  at  any  time  or  times   during 


250  New  Book  of  Forms. 

the  said  term,  assign  or  set  over,  underlease  or  underlet  the  de- 
mised premises,  or  in  any  other  manner  part  with  the  possession 
or  occupation  of  the  same,  during  any  part  of  this  demise,  with- 
out the  special  license  and  consent  of  the  said  A.  B.,  his  heirs  or 
assigns,  in  writing  under  his  or  their  hands  and  seals,  first  had 
and  obtained.* 


No.  345. — Covenant  that  the  Demised  Premises  shall  not  be 
Used  as   a  Workhouse   or   Schoolhouse,   etc. 

And  also  that  the  said  hereby  demised  premises,  or  any  part 
thereof,  shall  not,  at  any  time  during  the  said  term  of  ten  years, 
be  set,  let,  demised  or  used,  as  or  for  a  poorhouse  or  workhouse 
for  the  poor  of  the  town  of  Alameda  aforesaid,  or  any  of  them, 
to  dwell  or  inhabit  in,  or  as  or  for  a  school  for  the  educaiion  of 
children,  etc. 

No.  346. — ^A  Covenant  that  the  Tenant  shall  Lay  Out,  eta., 

in  Repairs. 

And  the  said  A.  B.  doth  covenant,  etc.,  to  and  with  the  said 
C.  D.,  his  heirs  and  assigns,  that  he,  the  said  A.  B.,  his,  etc.,  shall 
and  will,  within  one  year  next  after  the  date  hereof,  lay  out  and 
expend  the  sum  of  $1,000  in  repairing,  amending,  adorning,  and 
beautifying  the  said  tenement  hereby  demised.  (Or,  shall  and 
will,  at  his  ozvn  costs,  well  and  sufficiently,  put  the  said  tenement 
hereby  demised  in  a  good,  sufficient,  substantial  and  tenantable 
repair,  and  particularly  shall  and  will,  etc.  [the  particulars  agreed 
any) 

No.  347. — An  Agreement  that  Lessee  may  Deduct  Taxes  and 
the  Charges  of  Repairs  Out  of  the  Rent. 

And  also  that  it  shall  and  may  be  lawful  to  and  for  the  said 
A.  B.,  his,  etc.,  to  retain,  deduct,  and  keep  out  of  every  year's 
rent  agreed  to  be  paid  to  the  said  C.  D.,  his  heirs  or  assigns,  as 
aforesaid,  all  and  so  much  money  as  he,  the  said  A.  B.,  his,  etc., 
shall,  from  time  to  time  during  the  said  term,  have  paid  for  the 
taxes,  agreed  to  be  paid  by  the  said  C.  D.,  his  heirs  and  assigns. 
And  also  for  such  repairs,  amendments,  and  additions  by  him 
made  and  done,  in  and  about  the  premises,  by  and  with  the  con- 
sent or  direction  of  the  said  C.  D.,  his  heirs  or  assigns,  or  with- 
out, so  that  such  money  be  laid  out  and  expended  in  repairing  and 
supporting  the  said  premises,  or  some  part  thereof. 


*This  covenant  should  be  made   part   of   the  proviso   for  making  the 
lease  void. 


Lease.  2;r 


No.  348. — Habendum  of  a  Demise  for  T'r "e  Lives. 

To  have  and  to  hold  the  said  premises  hereinbefore  demised 
and  granted  with  their  appurtenances,  unto  the  said  /.  B.,  his 
executors,  etc.,  from  June  5,  1905,  now  last  past,  for  and  during 
the  term  of  nine  years  thence  next  ensuing,  and  fully  to  be  com- 
plete and  ended,  if  E.  B.  and  M.  B.  (daughters  of  the  said  /.  B.), 
and  A.  B.  (son  of  the  said  /.  B.),  or  any  or  either  of  them,  shall 
so  long  live. 

No.  349. — Another  Habendum. 

To  have  and  to  hold,  etc.,  unto  the  said  W.  R.,  his  heirs  and  as- 
signs, from  the  making  hereof,  for  and  during  the  natural  lives 
of  R.  R.,  son  of  the  said  IV.  R.,  aged  about  fifteen  years  or  there- 
abouts (and  so  of  the  others),  and  during  the  lives  and  life  of  the 
survivors  and  survivor  of  them,  etc. 

No.  350. — A  Reddendum  to  a  Person,  for  Life,  and  After,  to 
Those  in  Remainder. 

Yielding  and  paying  therefor,  yearly  and  every  year  during 
the  said  term  of  tiventy-cne  years,  at  or  in  the  hall  of  the 
mansion-house ,  commonly  called  C.  Hall,  in  M.,  the  yearly  rent 
or  sum  of  $1,000,  unto  the  said  D.,  and  his  assigns,  during  the  life 
of  the  said  D.,  and  after  his  decease,  to  such  other  person  and 
persons  as  for  the  time  being  shall  be  entitled  to  the  immediate 
reversion  or  remainder  of  the  premises  hereby  leased,  expectant 
on  the  determination  of  the  said  term,  by  even  and  equal  quar- 
terly payments,  the  first  of  the  said  quarterly  payments,  etc. 

No.  351. — A  Covenant  to  Renew  a  Lease. 

And  further  that  he,  the  said  A.  B.,  his,  etc.,  at  the  costs  and 
charges  of  the  said  C.  D.,  his  executors,  administrators  or  assigns 
(if  thereto  requested  by  him  or  them,  six  mmitJis  before  the  expi- 
ration of  the  term  hereby  remised),  shall  and  will  grant  a  further 
lease  of  the  aforesaid  premises  to  the  said  C.  D.,  his,  etc.,  for  the 
further  term  of  tiventy  years,  to  commence  from  the  expiration 
of  the  term  hereby  granted,  at  and  under  the  same  yearly  rent, 
and  containing  therein  the  like  covenants  and  agreements,  as  are 
in  these  presents  contained,  he,  the  said,  C.  D.,  his,  etc,  executing 
at  the  same  time  a  counterpart  thereof,  etc. 

No.  352. — Exception  of  a  Watercourse. 

Except  and  always  out  of  this  present  demise  reserved  unto 
and  for  the  said  W.  S.  and  F.,  his  ivife,  their  execntors,  admin- 


252  New  Book  of  Forms. 

istrators  and  assigns,  and  the  inhabitants  of  the  said  tenement, 
the  watercourse  or  passage  for  water,  made  under  or  through 
tlve  shop  of  the  said  hereby  demised  tenement  for  conveyance  of 
water  from  the  yard  or  back  part  of  the  said  tenement,  and  free 
Hberty  of  ingress,  egress,  and  regress  into,  upon,  or  over  the  said 
hereby  demised  tenement,  for  him,  the  said  W.  S.,  and  F.,  his 
■\\nfe,  their  executors,  administrators,  tenants,  workmen  and  as- 
signs, at  all  times  convenient  during  the  term  hereby  granted,  to 
cleanse,  repair,  and  amend  the  same  watercourse. 

No.  353. — Exception  of  a  Way. 

Except  and  always  reserved  unto  and  for  the  said  E.  G.,  his  ex- 
ecutors, administrators,  tenants  and  assigns,  and  all  other  persons 
whatsoever  free  leave  and  liberty  to  pass  and  repass,  in,  by  or 
through  the  way  or  passage  lying  through  the  said  tenement  into 
a  place  there,  on  the  back  part  of  the  said  tenement,  at  all  con- 
venient times,  in  the  daytime  only,  during  the  term  of  years  here- 
inafter granted. 

No.  354. — Exception  to  See  the  Circus  Go  by. 

Except  and  always  reserved  unto  the  said  A.  and  B.,  their  ex- 
ecutors, administrators,  and  assigns,  liberty  for  them  and  snch 
other  persons  as  they  or  either  of  them  shall  appoint  (not  exceed- 
ing in  number  50  persons)  to  stand  in  the  balcony  belonging  to 
the  said  hereby  demised  premises,  and  to  see  the  shows  and  pas- 
times that  shall  be  or  appear  in  the  streets  near  thereunto,  upon 
the  day  commonly  called  Thanksgiving  day,  and  on  such  other 
eminent  or  festival  days,  such  as  Labor  day,  whereon  any  shows 
or  pastimes,  or  other  public  matters  shall  appear  to  be  exhibited, 
and  liberty  to  pass  and  repass  to  and  from  the  said  balcony  for 
the  purpose  aforesaid,  by  and  through  the  said  hereby  demised 
tenement,  from  time  to  time,  and  at  all  times  during  the  said  term 
hereunder  granted. 

No.  355. — Lease  of  Goods.* 

This  Indenture,  made  the  ^d  day  of  June,  in  the  year  7905, 
between  A.  B.,  the  party  of  the  first  part,  and  C.  D.,  the  party  of 
the  second  part,  witnesseth :  That  the  said  party  of  the  first  part 
does  by  these  presents  lease  imto  the  said  party  of  the  second  part, 
all  the  following  named  property  [description],  for  the  term  of 
one  year,  commencing  on  the  jd  day  of  June,  A.  D.  1905,  said 
second  party  paying  therefor  unto  said  first  party  $1,000  on  the 
sixtieth  day  of  each  and  every  two  months  of  said  term,  until  the 
sum  of  $6,000  is  paid. 


•This  form  is  used  when  the  lease  is  to  be  a  purchase  when  the  last 
rent  is  paid.    It  is  usually  referred  as  a  sale  on  installments. 


Lease. 


253 


The  said  party  of  the  second  part  hereby  agrees  with  said  first 
party,  tliat  said  second  party  will  pay  to  said  first  party  the 
said  rent  at  the  times  and  in  tlie  manner  herein  specified,  and  that 
should  the  said  rent  be  unpaid  at  any  time,  or  as  herein  speci- 
fied, then  the  second  party  will  pay  interest  on  said  unpaid  rent 
at  tlie  rate  of  10  per  cent  per  month  from  the  date  of  default 
in  payment,  until  the  said  rent  is  paid,  together  with  reasonable 
charges  and  expenses  for  collecting  tlie  same,  and  tliat  said  sec- 
ond party  will  pay  all  taxes  assessed  against  said  goods  and 
chattels  wliile  in  his  possession. 

Tliat  said  second  party  will  not  assign  this  lease,  nor  assign 
or  sublet  his  interest  in  or  to  any  of  the  goods  and  chattels  herein 
described  witliout  the  written  consent  of  said  first  party. 

That  said  /second  party  will  not  remove  said  property  or  any 
part  thereof,  from  the  place  where  they  now  are,  to  zuit,  No.  yg2y 
Maple  street,  San  francisco,  California,  without  the  written  con- 
sent of  said  first  party. 

That  said  second  party  will  not  suffer  or  allow  any  part  of 
said  property  to  come  into  the  custody  or  control  of  any  person 
or  persons  other  than  said  second  party  during  the  continuance  of 
this  lease. 

That  upon  the  failure  of  the  party  of  the  second  part  to  com- 
ply witli  any  of  the  terms  of  this  lease,  or  if  any  legal  process 
shall  at  any  time  be  levied  upon  said  goods  and  chattels,  or  any 
part  thereof,  for  or  upon  any  debt  or  demand  now  due  or  to  be- 
come due  or  claimed  to  be  due  from  said  second  party,  then  this 
lease  shall  determine  and  become  void,  and  the  right  of  posses- 
sion in  and  to  said  goods  and  chattels,  and  every  part  thereof, 
shall  revert  to,  and  vest  in  said  first  party,  and  said  first  party 
shall  have  the  right,  without  notice  or  service,  to  take  said  good's 
and  chattels,  and  every  part  thereof,  from  second  party  without 
legal  process. 

That  if  this  lease  shall  at  any  time  be  determined  by  any  of  the 
acts,  or  by  failure  to  perform  any  of  the  acts  herein  specified,  on 
the  part  of  said  party  of  the  second  part,  then  all  the  rents  paid 
to  said  first  party,  by  said  second  party,  shall  be  deemed  to  and 
shall  be  the  property  of  said  first  party,  free  from  all  claims  and 
demands  of  said  second  party. 


No.  356. — Lease  of  Furniture. 

This  Indenture,  made  tliis  ^d  day  of  May,  1904,  between  A, 
B.  and  C.  D.,  witnesseth: 

That  in  consideration  of  the  rents  and  agreements  to  be  paid 
and  performed  on  the  part  of  the  said  C.  D.,  the  said  A.  B.  does 
hereby  lease  to  the  said  C.  D.  the  household  furniture  [or 
"goods"],  described  as  follows: 


254  New  Book  of  Forms. 

2  Looking-glasses marked  A  B  on   the   hack. 

I  Bureau "  A  B  on  the  hack. 

I  Grecian  tahle "  A  B  under  tJte  leaf. 

12  Mahogany  chairs "  A  B  under  the  seat. 

12  Silver  teaspoons "  A  B  on  the  handle. 

1  Piano "  A  B  on  the  hack. 

2  Kidderminster  carpets "       A  B  in  the  corner. 

To  have  and  to  hold  the  same  to  the  said  lessee,  for  the  term  of 
2  years,  from  the  date  hereof,  the  said  lessee  paying  therefor  the 
yearly  rent  of  sixty  dollars  during  the  said  term. 

And  the  said  lessee  covenants  with  the  said  lessor  that  he  will 
pay  the  rent  aforesaid,  in  monthly  payments  of  ten  dollars  each, 
on  the  1st  day  of  each  month,  during  said  term,  and  for  such  fur- 
ther time  as  the  lessee  may  hold  the  same ;  and  that  he  will  not 
assign  nor  underlet  the  said  furniture,  nor  any  part  thereof,  with- 
out the  written  consent  of  said  lessor ;  and  that  he  will,  at  his 
own  expense,  replace  any  and  all  of  said  furniture  which  shall  be 
lost,  or  carelessly  or  accidentally  injured  during  the  said  term; 
and  at  the  expiration  thereof,  or  the  sooner  termination  of  this 
lease,  he  will  restore  the  said  furniture  to  the  said  lessor,  in  the 
like  good  order  in  which  they  now  are,  wear  and  diminution  re- 
sulting from  reasonable  use  and  unavoidable  casualties  excepted. 

And  it  is  agreed  that,  until  condition  broken,  said  C.  D.  shall 
peaceably  retain  possession  of  said  chattels,  but  in  case  any  one 
or  more  of  the  conditions  of  this  lease  are  broken  by  the  said  C. 
D.,  the  said  A.  B.  may  at  any  time,  day  or  night,  enter  the  place 
where  said  furniture,  or  any  part  thereof,  may  be,  and  remove 
the  same,  and  he  may  use  all  necessary  force  to  remove  the  prop- 
erty' herein  described ;  and  it  is  further  agreed  that  time  is  of  the 
essence  of  this  contract. 

No,  357- — Lease — Covenant — Loss  by  Fire. 

Said  furniture  [or  goods]  to  be  restored  to  the  lessor  at  the 
expiration  of  this  lease  in  as  good  order  as  they  now  are,  wear 
and  diminution  resulting  from  reasonable  use  and  unavoidable 
casualties  and  accidental  loss  by  fire  alone  excepted. 

No.  358. — Lease  of  Mining  Clami. 

This  Indenture,  made  the  ^d  day  of  June,  in  the  year  1905, 
between  A.  B.,  lessor,  and  C.  D.,  lessee,  witnesseth :  That  the  said 
lessor,  for  and  in  consideration  of  the  rents,  royalties,  covenants 
and  agreements  hereinafter  reserved,  and  by  the  said  lessee  to  be 
paid,  kept  and  performed,  has  let,  and  by  these  presents  does  let, 
unto  the  said  lessee,  all  the  following  described  mine  and  mining 
property,  situated  in  Socket's  Gulch  Mining  District,  county  of 


LEAse.  255 

Sierra,  state  of  California,  to  wit:  [Description.]  Together  with 
tlie  appurtenances. 

To  have  and  to  hold,  unto  the  said  lessee  for  the  term  of  one 
year  from  the  date  hereof,  expiring  on  the  ^d  day  of  June,  A.  D. 
J904,  unless  sooner  forfeited  as  determined. 

And  in  consideration  of  the  said  lease,  the  said  lessee  does 
covenant  and  agree  with  said  lessor  as  follows,  to  wit :  To  enter 
upon  said  mine  or  premises  and  work  the  same  in  manner  neces- 
sary to  good  and  economical  mining,  so  as  to  take  out  the  great- 
est amount  of  ore  possible,  with  due  regard  to  the  safety,  devel- 
opment and  preservation  of  the  said  premises  as  a  workable  mine. 

To  work  and  mine  said  premises  as  aforesaid  steadily  and  con- 
tinuously from  the  date  of  this  lease ;  and  that  any  failure  to  work 
said  premises  with  at  least  four  persons  employed  under  ground 
for  the  space  of  50  consecutive  days  may  by  said  lessor  be  con- 
sidered a  violation  of  this  covenant. 

To  well  and  sufficiently  timber  said  mine  at  all  points  where 
proper,  and  to  repair  all  old  timbering  wherever  it  may  become 
necessary. 

To  allow  said  lessor  and  his  agents  to  enter  upon  and  into  all 
parts  of  said  mine  for  the  purpose  of  inspection. 

To  not  assign  this  lease,  or  any  interest  thereunder,  and  to  not 
sublet  the  said  premises  or  any  part  thereof,  without  the  written 
assent  of  said  lessor,  and  to  not  allow  any  person  or  persons  ex- 
cept the  said  lessee  and  his  workmen  to  take  or  hold  possession  of 
said  premises,  or  any  part  thereof,  under  any  pretense  whatever. 

To  occupy  and  hold  all  cross  or  parallel  lodes,  dips,  spurs, 
feeders,  crevices,  or  mineral  deposits  of  any  kind  which  may  be 
discovered  in  working  under  this  lease,  or  in  any  tunnel  nm  to 
intersect  said  In^  Mine  lode,  or  by  the  said  lessee,  or  any  person 
or  persons  under  him,  in  any  manner,  at  any  point  within  ^00 
feet  of  the  center  line  of  said  lode,  as  the  property  of  said  lessor  j 
with  privilege  to  said  lessee  of  working  the  same,  as  an  appurte- 
nance of  said  demised  premises,  during  the  term  of  this  lease ;  and 
to  not  locate  or  record  the  same,  or  allow  the  same  to  be  located 
or  recorded,  except  in  the  name  of  said  lessor. 

To  keep  at  all  times  the  drifts,  shafts,  tunnels,  and  other  pas- 
sages and  workings  of  said  demised  premises  thoroughly  drained 
and  clear  of  loose  rock  and  rubbish  of  all  kinds. 

To  deliver  up  to  said  lessor  the  said  premises  with  the  appur- 
tenances and  all  improvements,  in  good  order  and  condition,  with 
all  shafts  and  tunnels  and  other  passages  thoroughly  clear  of  rub- 
bish and  drained,  and  the  mine  in  all  points  ready  for  immediate 
continued  working  (accidents  not  arising  from  negligence  alone 
excusing)  without  demand  or  further  notice,  on  said  ^d  day  of 
/m«^.  a.  D.  190^,  at  noon  or  at  any  time  previous,  upon  demand 
for  forfeiture. 


2$6  New  Book  of  Fokms. 

And  finally,  upon  the  violation  by  the  said  lessee,  or  any  other 
person  under  him  of  any  covenant,  or  covenants  hereinbefore  re- 
served, the  term  of  this  lease  shall,  at  tlie  option  of  said  lessor, 
expire  and  the  same  and  said  premises  with  the  appurtenances 
shall  become  forfeited  to  said  lessor,  and  said  lessor  or  his  agent 
may  thereupon,  after  demand  of  possession,  enter  upon  said  prem- 
ises and  dispossess  all  persons  occupying  the  same,  with  or  with- 
out force,  and  with  or  without  process  of  law,  or  at  the  option 
of  said  lessor,  or  in  any  other  manner. 

Each  and  every  clause  and  covenant  of  this  indenttire  shall  ex- 
tend to  the  heirs,  executors,  and  administrators  of  all  parties 
hereto,  and  to  the  assigns  of  said  lessor;  and  as  said  lessor  may 
elect,  to  the  assigns  of  said  lessee. 

No.  359. — Surrender  of  a  Lease, 

Know  all  Men  by  these  Presents  :  That  I,  the  within  named 
A.  B.,  in  consideration  of  ten  dollars,  gold  coin  of  the  United 
States  of  America,  to  me  in  hand  paid,  at  or  before  the  ensealing 
and  delivery  of  these  presents,  do  for  myself,  my  executors  and 
administrators,  bargain,  sell,  surrender,  and  yield  up,  from  the 
day  of  the  date  hereof,  unto  the  within  named  C.  D.,  and  his 
heirs,  executors  and  administrators,  as  well  the  within  indenture 
of  lease  as  the  lands  and  premises  therein  mentioned,  and  the  term 
of  years  therein  yet  to  come,  with  all  my  right,  title,  and  interest 
thereto;  and  I  do  hereby  covenant,  that  the  same  are  free  and 
clear  of  all  encumbrances  of  what  kind  soever,  at  any  time  by 
me,  or  by  my  privity,  consent,  or  procurement,  done,  committed, 
or  suffered. 

No.  360. — Notice  to  Quit  by  the  Landlord. 

To  W.  B.  : 

Take  notice  that  you  are  hereby  required  to  quit  and  deliver 
up  to  me  the  possession  of  the  premises  now  held  and  occupied  by 
you,  being  the  premises  known  as  [or  sitviated]  [description],  at 
the  expiration  of  the  month  [or  week,  or  year,  as  may  be]  of  your 
monthly  tenancy  of  said  premises,  commencing  on  the  fifth  day 
of  April,  IQ05,  and  ending  on  the  fifth  day  of  May,  ipoj.  This 
is  intended  as  a  month's  notice  to  quit,  for  the  purpose  of  ter- 
minating your  tenancy  aforesaid- 
No.  361. — Notice  of  Quitting  Premises  by  Tenant. 

To  G.  J.,  Landlord: 

Please  take  notice  that  I  shall  quit  possession,  and  deliver  up 
the  premises  now  held  and  occupied  by  me,  being  the  premises 
[description],  at  the  end  of  tlie  next  month  of  my  monthly  ten- 


Lease;.  257 

ancy  of  said  premises,  to  wit,  on  the  fifth  day  of  May,  IQO^,  as 
I  intend  to  remove  therefrom,  and  to  terminate  the  said  tenancy. 

No.  362, — Notice  of  Application  to  be  Restored  to  Premises. 
[Title  of  Court  and  Cause.] 

You  will  please  take  notice  that  on  Monday,  August  28,  1905, 
at  the  hour  of  ten  A.  M.,  or  as  soon  thereafter  as  the  matter  can 
be  heard,  S.  S.,  the  defendant  in  the  above-entitled  action,  will 
move  R.  B.  B.,  Esq.,  justice  of  the  peace,  at  his  office  in  the  town 
of  Mackeraville,  Chancery  township,  Siskiyou  county,  California, 
to  release  said  defendant  from  the  forfeiture  of  his  lease  declared 
in  said  action,  and  that  he  be  restored  to  his  former  estate. 

Said  motion  will  be  made  on  the  ground  that  said  forfeiture  is 
0  great  hardship  on  said  defendant,  and  will  he  based  on  the  pcti- 
ticm  of  said  defendant,  and  the  finding  and  judgment  and  other 
papers  in  said  action. 

NOTE— California,  C.  C.  P.,  sec.  1179. 

No.  363. — Notice  to  Perform  Covenants  of  Lease. 

To  5.  M.,Esq.: 

You  are  notified  that  in  the  lease  under  which  you  hold  the 
premises  No.  2404  Mission  street,  city  and  county  of  San  Fran- 
cisco, as  my  tenant,  you  covenanted  that  you  would  give  the 
dzveUing-house  and  outhouses  and  front  fence  on  said  premises 
two  coats  of  good  paint,  the  second  as  soon  as  the  first  is  dry, 
ex'cry  tliird  year,  coniincncing  January  i,  1905;  tJtat  you  liave  vio- 
lated said  lease  by  neglecting  to  paint  the  houses  and  fence  on 
said  premises  at  all.  Now,  this  is  to  notify  you  that  you  are  re- 
quired to  give  said  dzvelling-house,  outhouse,  and  front  fence, 
tzvo  good  coats  of  paint,  as  you  covenanted  to  do  as  aforesaid,  or 
deliver  up  possession  of  the  same  to  the  undersigned,  or  I  shall 
institute  legal  proceedings  against  you  to  recover  possession  of 
said  premises. 

Yours  truly, 

NOTE.— California,  C.  C.  P.,  sec.  1161.  The  notice  may  be  varied  so 
as  to  embrace  every  possible  covenant  in  a  lease.  In  all  cases  it  is  good 
practice  to  copy  from  the  lease  into  the  notice  the  covenant  which  ia 
violated. 

No.  364. — Notice  to  Pay  Rent  or  Surrender  Possession, 

To  J.  R.  H.,  Tenant  in  Possession: 

You  are  hereby  required  to  pay  the  rent  of  the  premises  here- 
inafter described,  and  which  you  now  hold  possession  of,  amount- 
mg  to  the  sum  of  forty  dollars,  being  the  amoimt  now  due  and 
owing  to  me  by  you  for  one  month's  rent,  from  the  twentieth  day 
New  Forms — 17 


258  New  Book  op  Forms. 

of  September,  ipo^,  to  the  twentieth  day  of  October,  ipo^,  or  de- 
liver up  possession  of  the  same  to  F.  S.,  my  agent,  who  is  hereby 
authorized  to  receive  possession  thereof,  or  the  rent,  due  and  un- 
paid, from  you,  or  I  shall  institute  legal  proceedings  against  you 
to  recover  possession  of  said  premises,  with  treble  rents. 

Said  premises  are  situated  in  the  city  and  county  of  San  Fran- 
cisco, and  described  as  follows : 

All  that  certain  frame  dwelling-house  situate  at  the  north- 
easterly corner  of  Clay  and  Webster  streets;  said  premises  hav- 
ing one  hundred  feet  frontage  on  Webster  street,  and  twenty-Uve 
feet  on  northerly  line  of  said  Clay  street,  and  having  the  entrance 
en  said  Clay  street,  said  premises  being  designated  and  known 
by  the  No.  2^4^  Clay  street 

NOTE. — The  above  is  in  conformity  with  Code  of  Civil  Procedure  of 
California,  section  1161.  It  is  not  necessary  to  say  in  such  notice  that 
the  premises  must  be  surrendered  within  three  days.  The  codes  direct 
that  three  days'  notice  shall  be  given.  In  tenancies  at  will  the  time 
must  be  stated:  C.  C,  sec.  789. 

No.  365. — Notice  of  Change  of  Terms  of  Lease. 

To/.  R.,  Esq.: 

You  are  hereby  notified  that  at  the  expiration  of  the  present 
month  of  your  tenancy,  which  will  be  on  the  fifteenth  day  of  Jan- 
uary, ipoj,  the  terms  of  your  lease  of  the  premises  you  occupy, 
under  tenancy  from  month  to  month,  situate  in  the  city  and 
county  of  San  Francisco,  and  described  as  follows,  to  wit :  All 
that  cei'tain  store  on  the  northerly  side  of  Washington  street,  be- 
tween Sansome  and  Montgomery,  and  designated  and  known 
by  the  No.  5jd  Washington  street,  will  be  changed  as  follows,  to 
wit: 

The  monthly  rent  thereof  will  be  two  hundred  and  iifty  dollars, 
United  States  gold  coin,  per  month,  payable  monthly,  in  advance, 
on  the  sixteenth  day  of  each  and  every  month  you  continue  to 
hold  possession  thereof,  after  the  expiration  of  ijie  current  month, 
instead  of  the  sum  of  fifty  dollars  heretofore  paid  by  you. 

NOTE. — Section  827  of  the  Civil  Code  of  California  provides  for 
changing  terms  of  lease  or  tenancy  from  month  to  month  arbitrarily; 
and  the  amount  to  which  the  rent  may  be  raised  is  unlimited  in  those 
easea  specially  authorized  by  the  statute. 

No.    366. — Notice   Terminating   Tenancy. 

You  are  hereby  notified  tliat  on  the  first  day  of  September,  ipo§, 
your  lease  or  tenancy  for  the  premises  you  hold  possession  of,  sit- 
uate in  the  city  and  county  of  San  Francisco,  state  of  California, 
and  described  as  follows,  to  wit  [description],  will  terminate  and 
end,  and  you  are  requested  and  required  to  deliver  possessicto 
thereof  to  Mr.  R.,  on  said  first  day  of  September,  ipo^. 

(Dated.) 


Lease — Liens.  259 

No.  367. — Notice — Termination — Tenancy  at  Will. 

To  A.  B.,  Tenant  in  Possession: 

Yon  will  please  take  notice  that  the  tenancy  under  which  you 
hold  i^ossession  of  the  property  described  as  follows  [descrip- 
tion], is  by  this  notice  terminated,  and  you  are  notified  to  remove 
from  said  premises  within  the  period  of  thirty-five  days  from  and 
after  the  jd  day  of  June,  1905. 

NOTK— C  C,  see.  789. 

No.   368. — Acknowledgment  of   Tenancy. 

Know  all  Men:  That  I  acknowledge  that  A.  B.  C.  is  the 
owner  of  the  premises  described  as  follows:  [Description.]  And 
I  declare  that  I  occupy  said  premises  as  tenant  at  will  of  the  said 
A.  B.  C,  and  that  I'will  surrender  the  said  premises  upon  tlie 
written  order  of  said  owner  upon  ten  days'  notice. 

No.  369. — Notice  to  Intended  Purchaser  that  Person  in  Pos- 
session  Claims   an   Interest   in   Premises. 

Please  take  notice  that  I  am  in  the  possession  of  the  premises 
described  as  follows:  [Description.]  That  I  have  been  in  the 
possession  thereof  since  June,  1904,  adversely  to  A.  B.  C,  who 
claims  to  own  the  same. 


LIENS. 


No.  370. — Materialman's  Lien. 

Notice  is  Hereby  Given  to  All  Wliom  It  May  Concern: 

That  the  said  G.  P.  Company  was  during  all  the  times  herein- 
after mentioned,  and  still  is,  a  corporation,  organized  and  doing 
business  under  the  laws  of  the  state  of  California.  That  one  of 
the  purposes  for  which  said  corporation  was  organized  was  tlie 
manufacture  and  sale  of  explosives  and  other  articles  used  in 
blasting. 

That  the  S.  D.  F.  Company  was  during  all  the  times  herein- 
after mentioned,  and  still  is,  a  corporation,  organized  and  doing 
business  under  tl\e  laws  of  the  state  of  California.  That  one  of 
the  purposes  for  which  said  corporation  was  organized  and  in 
>^hich  it  engaged  was  the  construction  of  a  flume  or  structure  or 
ditch  from  a  diverting  dam  owned  by  it  on  the  San  Diego  ri<-er, 
San  Diego  co^inty,  California,  to  its  city  reservoir  near  tlie  said 
city  of  Son  Diego. 


26o  New  Book  of  Forms. 

That  said  structure  consisted  of  culverts,  surfaced  ditches,  fun- 
nels, flumes  and  approaches  to  tunnels,  and  about  three  thousand 
feet  of  tunnels,  the  said  structure  being  about  fifty  miles  long, 
in  said  county  of  San  Diego. 

That  the  S.  D.  F.  Company  aforesaid  zvas  and  is  the  ozvner  of 
said  diverting  dam,  Hume,  surface  ditches,  tunitel  approaches,  tun- 
nels, and  reservoirs. 

That  /.  /.  is  the  name  of  the  contractor  who  on  the  thirtieth 
day  of  March,  ipo^,  as  such  contractor,  entered  into  a  contract  in 
writing  with  said  S.  D.  F.  Company,  under  and  by  which  the 
said  /.  agreed  to  do  certain  work  on  said  Hume,  ditches,  tunnels, 
and  structures,  and  the  following  is  a  statement  of  the  terms, 
time  given,  and  conditions  of  said  contract,  to  wit : 

The  said  contract  is  hereto  attached  and  referred  to,  and,  with 
all  the  indorsements  thereon  and  supplements  thereto,  made  a 
part  of  this  notice  or  claim  of  lien,  and  marked  "Bxhibit  A." 

That  immediately  after  the  date  of  said  contract,  to  wit:  on 
or  about  April  p,  IQO^,  the  said  /.  commenced  work  under  said 
contract  on  said  structure,  and  continued  work  as  aforesaid  until 
August  10,  1905,  and  there  became  due  him  under  the  terms  of 
said  contract  about  the  sum  of  $40,000. 

That  said  contract  has  not  been  fully  performed  on  the  part  of 
J.,  but,  on  the  contrary,  the  said  /.  did  on  or  about  the  tenth  day 
of  August,  A.  D.  IQO^,  abandon  his  contract,  stop  all  work,  and 
surrender  said  contract  to  said  5*.  D.  F.  Com,pany,  and  said  F. 
Company  accepted  the  surrender  of  said  contract  and  took  and 
accepted  possession  of  said  structure  and  accepted  the  said  struc- 
ture, Humes,  ditches,  and  tunnels,  and  has  ever  since  continued 
in  the  occupation  and  use  of  the  same,  and  said  works  accepted  as 
aforesaid.  That  thirty  days  have  not  elapsed  since  said  contract 
was  abandoned,  and  the  said  /.  has  never  resumed  said  work  and 
does  not  intend  to  do  so. 

That  said  contract  was  not  filed  in  the  office  of  the  County  Re- 
corder of  said  San  Diego  county,  prior  to  June  6,  ipoj.  That 
the  amount  of  the  contract  price  for  said  work  under  said  contract 
was,  as  stated  therein,  to  wit:  "Bxhibit  A." 

That  on  the  ninth  day  of  April,  190^,  the  said  G.  P.  Company 
entered  into  a  written  contract  with  said  /.  as  such  contractor  to 
supply  him  with  powder,  caps,  and  fuse  to  be  used  and  which 
was  used  by  him  in  performing  and  zvorking  under  his  said  con- 
tract with  said  F.  Company,  which  said  contract  is  herein  re- 
ferred to  for  the  terms,  time  given,  and  conditions  thereof,  and 
made  part  hereof,  and  marked  "Exhibit  B." 

That  under  its  said  contract  the  G.  P.  Company,  between  the 
ninth  day  of  April,  and  the  tenth  day  of  August,  ipo§,  furnished 
said  /.  (and  at  the  instance  of  said  S.  D.  F.  Company)  powder, 


Liens.  2O1 

caps,  and  fuse  to  the  x-alue  of  ^J,22i.^'j,  to  he  iiscd  and  which 
were  used  by  the  said  /.  in  the  construction  of  said  flume,  tunnel, 
ditch,  and  structure.  That  no  part  of  said  sum  has  been  paid, 
and'  there  are  no  offsets  or  credits,  and  the  same,  after  deduct- 
ing all  just  credits  and  ofTsets,  is  all  due  the  said  G.  P.  Company 
under  its  said  contract. 

The  property  to  be  charged  with  the  lien  is  situated  in  San 
Diego  county,  California,  and  is  the  same  property  described 
herein  and  in  said  contract  aforesaid,  to  wit:  "Exhibit  A." 

Wherefore,  the  G.  P.  Company  claims  a  lien  on  the  said  de- 
scribed property  described  in  said  contract  to  the  extent  of  $J,- 
221.5J,  interest  and  costs  and  counsel  fees,  under  the  laws  of  tlie 
state  of  California- 
Mechanics'  Liens  Generally. — A  mechanir's  lien  only  exists  upon 
eomplianee  with  the  statute:  Morris  v.  Wilson,  97  Cal.  644,  32  Pac.  801. 
The  first  California  case  was  Hooper  v.  Flood,  54  Cal.  218.  It  was  said 
in  the  first  case  that  a  substantial  observance  was  required.  In  Davis 
V.  Livingston,  29  Cal.  283,  it  was  said  that  the  contractor  must  comply 
strictly  with  the  provisions  of  the  law.  Cited  in  Shaver  v.  Murdo^k,  36 
Cal.  298.  In  Willamette  etc.  M.  Co.  v.  Los  Angeles  C.  Co.,  94  Cal.  229,  20 
Pac.  629,  it  was  held  that  a  laborer  or  materialman  must  file  his  claim  in 
the  recorder's  office  with  as  much  specification,  and  within  the  time 
limited  by  the  statute,  as  if  he  himself  had  made  a  direct  contract  for 
his  labor  or  for  material  with  the  owner. 

Contracts  to  be  in  Writing  When — Recording  of. — If  the  contract 
price  does  not  exceed  one  thousand  dollars,  the  contract  need  not  be 
in  writing,  to  be  good  between  the  owner  and  contractor,  without  a 
reservation  in  it  of  twenty-five  per  cent  of  the  contract  price  for  thirty- 
five  days  after  the  completion  of  the  work:  C.  C.  P.,  sec.  1183;  Sidlinger 
v.  Kerkow,  82  Cal.  42,  22  Pac.  932.  To  matters  of  that  description  the 
case  of  Barber  v.  Eevnolds,  33  Cal.  497,  and  44  Cal.  519,  is  applicable. 
In  Santa  Monica  Lumber  Co.  v.  Hege,  119  Cal.  376,  51  Pac.  555",  Sidlin- 
ger V.  Kerkow,  above  noted,  it  was  held  that  such  contracts,  if  in  vprit- 
ing,  need  not  be  recorded.  As  to  recording  contracts  where  the  amount 
to  be  paid  exceeds  one  thousand  dollars,  it  has  been  held  in  several 
eases  that  the  recording  must  precede  commencing  work:  Kellogg  v. 
Howes,  81  Cal.  170,  22  Pac.  509,  6  L.  R.  A.  588;  Spinney  v.  Griffith,  98 
Cal.  149.  32  Pac.  974.  The  last  case  is  Marchant  v.  Hayes,  117  Cal.  669, 
9  Pac.  840.  There  are  thirty-eight  volumes  of  California  Reports  be- 
tween Kellogg  V.  Howes,  81  Cal.  170,  22  Pac.  509,  6  L.  R.  A.  588,  and 
:^rarehant  v.  Hayes,  117  Cal.  669,  9  Pac.  840,  and  it  appears  that  it  re- 
quired the  time  covered  by  those  thirty-eight  volumes  for  the  California 
Bar  to  be  certain  that  section  1189,  Code  of  Civil  Procedure,  meant 
what  it  said. 

Those  Wlio  may  have  Lien. — A  person  who  performs  labor  in  the 
eonstniction  of  a  building  at  the  request  of  a  contractor  has  a  lien: 
Patent  Brick  Co.  v.  Moore.  75  Cal.  205.  16  Pac.  890. 

One  performing  manual  labor  in  a  mine  is  also  entitled  to  a  lien, 
though  he  is  called  superintendent  of  the  mine:  Palmer  v.  Uncas  Min 
Co.,  70  Cal.  614,  11  Pac.  666. 

A  cook  is  not  entitled  to  a  lien  for  services  in  cooking  for  laborers 
and  others  who  were  entitled  to  liens:  McCormick  v.  Los  Anjreles  Water 
Co.,  40  CaL  185. 


262  New  Book  of  Forms. 

One  who  advances  money  as  a  loan  expressly  to  be  used  in  payment 
of  materials  and  labor  used  in  the  construction  of  a  building  has  no 
lien:  Godfrey  v.  Caldwell,  2  Cal.  489,  56  Am.  Dec.  360. 

One  who  did  not  labor  on  a  building,  or  furnish  materials  therefor, 
hnt  was  employed  bv  the  briek  men  to  haul  brick  for  them,  is  not  en- 
titled to  a  lien:  Adams  v.  Burbank,  103  Cal.  646,  37  Pae.  640. 

Laborers  and  materialmen  under  a  contractor  for  part  of  the  work 
on  a  structure  are  entitled  to  liens:  Pacific  M.  L.  Ins.  Co.  v.  Fisher,  106 
Cal.  224,  39  Pae.  758.  Patterns  used  in  the  manufacture  of  couplings 
bv  a  materialman  and  the  boxes  in  which  they  were  packed  for  ship- 
ment are  too  remote  to  be  allowed  as  a  base  for  a  materialman's  lien: 
First  Nat.  Bank  of  Ohio  v.  Ferris  Irr.  Dist.,  107  Cal.  55.  40  Pae.  45. 

Persons  who  were  merely  engaged  by  the  contractor  to  haul  slate 
to  the  building  and  deliver  it  to  the  contractor  have  no  lien:  Wilson  v. 
Nugent,  125  Cal.  280.  57  Pae.  1008;  but  a  person  directly  employed  by 
the  contractor  as  the  agent  of  the  owner  in  the  hauling  of  materials  to 
be  used  in  the  eonstruetion  of  a  building  has  a  lien  on  the  building:  Mc- 
Clain  V.  Hutton,  131  Cal.  132.  61  Pae.  273.  63  Pae.  192,  622. 

One  who  sells  material  to  a  materialman  ean  claim  no  lien  therefor: 
John  A.  Eoebling's  Sons  Co.  v.  Humboldt  Electric  Light  Co.,  112  Cal. 
288,  44  Pae.  568. 

A  contract  with  a  contractor  to  furnish  manufactured  millwork  for 
the  erection  of  a  building  is  a  materialman  only,  and  not  a  subcontractor, 
and  one  who  furnishes  doors  and  other  stock  material  has  no  lien  for 
the  materials  so  furnished:  Wilson  v.  Hind.  113  Cal.  357,  45  Pae.  695. 

It  must  appear  that  the  materials  were  furnished  expressly  to  be  used 
for  the  particular  building  on  which  the  Hen  is  asserted:  Weatherlv  v. 
Van  Wyck,  128  Cal.  329.  60  Pae.  846. 

Laborers  who  have  actually  performed  work,  notwithstanding  their 
employment  is  general,  may  have  a  lien:  Ah  Louis  v.  Harwood,  140  Cal. 
500,  7*4  Pae.  41. 

Powder  consumed  in  blasting  in  ditch  work,  although  it  vanished  in 
a  flash  when  used,  held  to  be  material  furnished:  Giant  Powder  Co.  v. 
San  Diego  Flume  Co.,  78  Cal.  193,  20  Pae.  419. 

Street  Work. — Section  1191,  Code  of  Civil  Procedure,  gives  a  lien  for 
street  work  in  front  of  lots  in  any  incorporated  city  or  town,  and  will 
be  upheld  in  eases  where  the  owner  of  the  lot  orders  the  work  done: 
Santa  Cruz  etc.  Co.  v.  Lyons,  133  Cal.  114,  65  Pae.  329. 

Knowledge  of  Claimant  as  to  Ownership. — If  the  person  claiming  a 
lien  knows  that  the  person  having  charge  of  a  mine  and  who  emploved 
liim  did  not  own  the  mine,  and  was  not  working  it  as  the  owner's  repre- 
sentative, he  is  not  entitled  to  a  lien  on  the  authority  of  his  employer's 
agency:  Jurgenson  v.  Diller,  114  Cal.  491,  55  Am.  St.  Eep.  83,  46  Pae. 
610. 

Presumption  as  to  Ownership. — Open  and  continued  acts  of  any  person 
having  charge  of  property  upon  which  labor  is  done  is  prima  facie  evi- 
dence that  such  person  was  the  agent  of  the  owner  for  the  purposes  of 
section  1192,  Code  of  Civil  Procedure,  though  the  owner  may  rebut  r>re- 
Bumption  of  his  knowledge  by  proof  of  his  want  of  knowledge,  and  that 
he  exercised  care:  Donohoe  v.  Trinity  Min.  Co.,  113  Cal.  119,  45  Pae. 
259. 

Lien  Sustained  by  Judicial  Notice  of  Words. — A  court  will  take  judi- 
cial notice  of  all  English  words  and  phrases  and  of  all  legal  expressions: 
C.  C.  P.,  see.  1875;  and  that  such  expressions  as  "shafts,"  "tunnels," 
*' chutes,"  "stopes,"  "uprises,"  "cross-cuts,"  "inclines,"  etc.,  when 
applied  to  mines,  signify  instrumentalities  through  which  mines  are 
worked.    Work  done  by  lessees  in  sinking  a  shaft  under  a  lease  from  the 


Liens.  263 

owners  which  provides  that  the  lessees  mrty  sink  shafts,  mnst  be  deemed 
to  have  been  done  with  the  lessor's  knowledge,  and  in  the  abseneo  of 
notice,  the  mine  is  subject  to  liens  for  work  in  the  shaft:  Hines  v 
Miller,  122  Cal.  519,  55  Pae.  401. 

Owner  or  Eepnted  Owner. — A  statement  tliat  one  of  the  named  de- 
fendants "was,  and  still  is,  the  reputed  owner  of  the  land  on  whieh 
the  house  was  moved,"  and  that  the  defendants  [naming  them],  are 
the  "reputed  owners"  of  the  house,  is  a  sufficient  description:  Palmer 
V.  Lavinge,  104  Cal.  30,  37  Pac.  775. 

The  name  of  the  owner  or  reput^^d  owner  may  be  stated  in  the  alterna- 
tive: Corbett  v.  Chambers,  109  Cal.  178,  41  Pac.  873.  A  claim  of  lien 
stated  the  home  of  the  reputed  owner,  but  did  not  state  that  he  was 
the  owner.  The  lien  was  upheld:  Bvron  v.  Abbott,  131  Cal.  222,  63  Pac 
363. 

Destructive  Work— The  Rule— What  is.— In  a  ease  where  laborers 
were  extracting  gold  from  a  mrne,  it  was  said  that  "drifting  in  a 
tunnel"  is  not  the  same  as  "running  a  tunnel,"  and  "drifting  in 
a  tunnel"  is  not  the  construction,  alteration,  or  repair  of  any  build- 
ing or  improvement  on  or  in  a  mine  within  the  meaning  of  section 
1192.  Code  of  CSvil  Procedure,  and  a  laborer  doing  such  work  at  the 
instance  of  a  person  not  the  owner  is  not  entitled  to  a  lien  upon 
failure  of  the  owner  to  post  notice  of  nonliability.  In  writing  the 
opinion  of  the  court,  Mr.  Commissioner  Britt  said:  "It  is  equitable 
to  require  the  owner  when  he  sees  work  going  forward  on  an  un- 
authorized building,  etc.,  to  give  notice  that  he  will  not  be  responsible 
therefor;  but  this  consideration  fails  when  the  work  consists  in  a  sub- 
tracting process,  the  removal  of  the  very  corpus  of  the  property,  as 
■will  require  one  who  sees  a  trespasser  cutting  his  timber  to  post  notice 
of  nonliability,  under  penalty  of  having  his  land  subjected  to  a  lien 
for  the  labor":  See  Chappiiis  v.  Blankman,  post;  .Turgenson  v.  Diller, 
114  Cal.  491,  55  Am.  St.  Rep.  83,  46  Pac.  610.  See  Hines  v.  Miller,  above' 
referred  to.  In  that  case  the  lease  contemplated  that  the  lessees  would 
sink  shafts. 

Hamilton  v.  Delhi  Min.  Co.,  118  Cal.  148,  50  Pac.  378,  is  a  case  where 
^ork  was  done  in  a  mine  with  the  knowleilge  of  the  owner  and  n  miner's 
lien  was  upheld.  But  in  Chappius  v.  Blankman,  128  Cal.  362,  60  Pac. 
925,  it  is  held  that  "work  done  by  laborers  in  a  quartz  mine  in  taking 
out  ore.  or  breaking  down  and  tearing  from  the  face  of  the  drifts  and 
mine  the  quartz  and  substance  of  the  mine,  is  work  for  which  a  lien 
upon  the  mine  may  be  claimed  under  section  1183,  Code  of  Civil  Pro- 
cedure. The  court  referred  to  section  1192,  Code  of  Civil  Procedure,  and 
said:  "Breaking  down  and  tearing  away  from  the  face  of  the  drifts 
and  mine  the  quartz  and  substance  of  the  mine"  is  work  and  labor  tend- 
ing to  destroy  the  property  rather  than  improve  it;  and  was  not  labor 
performed  in  the  construction  and  alteration  or  repair  of  a  mine  "for 
which  liens  are  allowed  under  sections  1183  to  1192  of  the  Code  of 
Civil  Procedure";  but  we  are  satisfied  section  1183  entitles  the  laborers 
to  liens  for  work  done.  The  case  of  .Turgenson  v.  Diller.  114  Cal.  491 
55  Am.  St.  Rep.  83,  46  Pac.  610,  is  not  referred  to  by  the  court;  but 
it  is  evident  from  the  matter  above  quoted  that  Mr.  .Justice  Garoutte, 
who  wrote  the  opinion  in  Chappius  v.  Blankman,  was  familiar  with 
the  case  of  Jurgenson  v.  Diller.  .Judge  Searlos,  who  wrote  the  opin- 
ion in  Hines  v.  Miller,  took  judicial  notice  as  a  judge  and  practical 
miner  that  extracting  gold  from  a  mine  is  not  destruction  of  a  mine- 
it  is  using  a  mine  for  all  it  is  worth,  and  for  that  very  purpose  for 
which  possession  is  obtained.  He  also  knew  that  the  abstraction  of 
gold  from  a  quartz  mine  does  not  destroy  the  surface  of  the  mine  nor 
the  use  of  it  for  the  purposes  of  agriculture.     As  to  placer  mines,  every- 


264 


New  Book  o?  Forms. 


body  OTight  to  know  that  a  majority  of  the  old  ones  in  CjJifomia  are 
now  good  timber  and  agricultural  lands. 

Notice  of  Lien — Variance. — If  there  is  a  substantial  variance  between 
the  notice  of  lieoi  and  the  proof,  it  i8  fatal  to  the  notice  of  lien:  Santa 
Monica  Lumber  Co.  v.  Hege,  119  Cal.  376,  51  Pac.  555.  A  notice  stated 
that  the  materialman  was  to  be  paid  what  the  materials  were  reasonably 
worth  and  that  the  subcontractor  was  to  deliver  to  claimant  upon  com- 
pletion of  the  building  an  order  for  the  amount  due,  to  be  accepted  by  the 
original  contractor  and  the  owner  of  the  building.  The  evidence  was 
that  the  subcontractor  bought  the  materials  at  a  fixed  price,  without 
any  agreement  as  to  an  order  or  as  to  payment  from  the  contract  price. 
Held  to  be  a  material  variation:  Wilson  v.  Hind,  113  Cal.  357,  45  Pac 
695. 

'  Proof  that  the  contract  was  for  the  "regular  market  price"  is  equiva- 
lent to  the  words,  "what  the  materials  were  reasonably  worth";  but 
the  same  notice  stated  that  incorrectly  the  amount  of  the  balance  due 
was  the  amount  of  the  contract  price  of  the  lumber,  and  that  no  part 
thereof  had  been  paid.  Proof  that  the  contract  price  was  considerably 
larger,  and  that  payments  had  been  made  thereon,  showed  a  fatal  var- 
iance: Santa  Monica  Lumber  Co.  v.  Hege,  119  Cal.  376,  51  Pac.  555. 

A  statement  that  the  materials  were  to  be  paid  for  at  the  market 
value  and  the  proof  was  that  they  were  to  be  paid  for  at  a  price  fixed 
is  a  fatal  ^-arianee:  Wilson  v.  Nugent,  125  Cal.  280,  57  Pac.  1008. 

Reasonable  Rates. — If  the  claim  of  lien  states  that  the  price  was  to 
be  the  "reasonable  market  rates,"  and  the  proof  is  that  the  contract  was 
express  to  pay  a  fixed  price,  the  variance  is  fatal:  Buell  v.  Browu,  131 
Cal.  158,  63  Pac.  167. 

Things  Sold  to  be  Used,  but  not  Used. — If  a  claim  of  lien  includes 
materials  used  upon  other  property  not  involved  in  the  action,  and  if 
they  cannot  be  segregated,  and  there  is  also  a  variance  as  to  the  terms 
ot  the  contract,  the  lien  is  invalid:  McClain  v.  Hutton,  131  Cal.  132, 
61  Pac.  273,  63  Pac.  182,  622. 

Construction  of  "Payment." — ^If  it  is  stated  that  no  time  was  fixed  to 
commence  work,  and  that  payment  was  to  be  made  on  completion  of 
the  work,  or  as  required  in  its  progress,  it  will  be  construed  to  mean 
that  payment  is  to  be  made  when  the  work  is  completed:  Bryan  v. 
Abbott,  131  Cal.  222,  63  Pac.  363.  A  notice  of  lien  is  sufiaeient  if  it 
states  only  the  name  of  the  owner  when  the  lien  was  filed. 

Terms — Time  Given,  etc. — The  words  "terms,  time  given  and  condi- 
tions of  the  contract"  do  not  require  all  the  details  of  the  contract  to 
be  stated.  The  statute  is  to  be  liberally  construed;  and  the  notices 
required  to  be  given  thereunder  ought  to  conform  to  substance  rather 
than  to  form:  McGinty  v.  Morgan,  122  Cal.  103,  54  Pac.  392.  For  exam- 
ple: A  materialman's  notice  stated  that  the  materials  were  to  be  deliv- 
ered in  such  quantities  as  might  be  directed  during  the  progress  of  the 
construction  of  the  building,  and  that  he  was  to  be  paid  therefor  on  de- 
mand of  payment  as  to  each  deliverey  of  any  quantity  of  such  property 
bv  him  the  reasonable  market  value  thereof.  Held  to  be  sufficient: 
Snell  V.  Pajrne,  115  Cal.  218,  46  Pac.  1069. 

A  contractor  contracted  with  the  owner  to  build  a  house.  The  owner 
necessarily  knew  the  terms,  etc.,  of  the  contract.  The  contractor  filed 
a  lien  and  omitted  to  state  the  fact  "that  the  contract  price  was  to  be 
paid  in  installments  as  the  work  progressed."  All  other  terms  and 
conditions  were  correctly  stated.  Held  to  be  in  accordance  with  law: 
McGinty  v.  Morgan,  122  Cal.  103,  54  Pac.  392. 

A  statement  that  the  terms,  time  given  and  conditions  of  the  con- 
tract,  were   "Cash   on   completion   of   contract"   is   sufficient:    KeUy   v. 


Liens.  265 

Ptovcr,  lOT  Cal.  35,  36  Par.  1020.  All  the  facts  of  tho  contract  wore 
correctly  stated  in  it  except  there  was  a  substantial  mistake  in  the  ilate 
of  the  contract  (a  mistake  of  two  years).  The  contract  was  upheld: 
Pacific  Mat.  Life  Ins.  Co.  v.  Fisher,  109  Cal.  566,  42  Pac.  154. 

Error  in  Notice. — As  to  error  in  date  of  filinfr  notice  when  it  shows 
it  was  filed  too  late,  not  material  if  it  was  really  filed  in  time:  Boscow 
V.  Patton,  1.36  Cal.  90,  68  Pac.  490.  If  no  statement  of  time  given  is  in 
the  notice,  it  will  be  presumed  that  no  time  was  given:  also  held  that 
the  words  "at  usual  rates"  are  equivalent  to  the  words  "for  what  it 
was  reasonably  worth":  McClain  v.  Button,  131  Cal.  132,  61  Pac.  273,  63 
Jr-ac.  182,  622. 

Notice  by  Laborers. — If  the  laborers  were  employed  by  the  month, 
it  was  unnecessary  to  file  notice  until  thirty  days  after  employment 
terminated:  Ah  Louis  v.  Harwood,  140  Cal.  500,  74  Pac.  41. 

Notice  to  Owner — Materials,  etc. — Such  notice  (C.  C.  P.,  sec.  1184) 
has  the  effect  of  a  j^jarnishment  of  the  moneys  coming  to  the  contractor. 
It  is  merely  a  cumulative  remedy:  Bianchi  v.  Hughes,  124  Cal.  24,  56 
t*ac.  610.  It  also  acts  as  a  notice  that  any  money  balance  remaining 
to  be  paid  to  the  contractor  thereafter  would  be  at  the  peril  of  the 
owner.  This  case  also  holds  that  an  assignment  by  a  contractor  of 
money  before  it  is  due  is  not  prior  to  a  notice  served  on  the  owner  by  a 
materialman  before  the  amount  was  due:  Newport  Wharf  etc.  Co.  v. 
Drew,  125  Cal.  585,  58  Pac.  187. 

Several  Notices. — If  more  than  one  notice  is  given  they  will  not  be 
read  together.  Each  notice  must  be  itself  suflicient:  Davis  v.  Liv- 
ingston, 29  Cal.  2S2.  The  statements  in  the  notice  of  lien  must  be 
made  in  accordance  with  the  facts,  and  if  the  facts  are  not  correctly 
stated  the  lien  is  lost:  Santa  Monica  Lumber  Co.  v.  Hege,  119  Cal.  376, 
51  Pac.  555. 

Amendment  of  Notice. — A  notice  of  lien  is  not  subject  to  amendment. 
The  description  of  property  referred  to  in  it  must  be  described  with 
reasonable  certainty:  Fernandez  v.  Burleson,  110  Cal.  164,  52  Am.  St. 
Eep.  75,  42  Pac.  566. 

Notice  of  Completion  of  Contract. — Under  section  1187  of  the  Cali- 
fornia Code  of  Civil  Procedure  it  is  made  the  duty  of  the  owner  to  file 
with  the  county  recorder  a  verified  notice  stating  the  date  when  the 
structure,  etc.,  was  completed.  It  must  be  filed  within  ten  days  after 
completion,  or  within  forty  days  after  cessation  from  labor  upon  an  un- 
finished contract.  It  is  not  unlikely  that  the  courts  will  hold  that  not- 
withstanding such  verified  notice  was  filed,  that  it  will  be  consiilered 
as  only  prima  facie  true.  If  all  owners  of  property  were  known  to  be 
unimpeachable,  such  verification  would  be  conclusive  as  to  the  facts,  but 
unluckily,  now  and  then  an  owner  is  discovered  who  is  not  truthful,  and 
therefore  the  worthy  must  submit  to  inconveniences. 

In  Buoll  V.  Brown,  it  is  said  that  cessation  from  labor  for  thirty 
days  is  deemed  completion,  and  if  the  owner  does  not  file  the  notice 
of  cessation  from  labor,  materialmen  must  file  their  claims  at  all  events 
after  the  expiration  of  ninety  days  after  the  expiration  of  the  thirty 
days  period;  that  is  to  say,  within  one  hundred  and  twenty  davs  after 
actual  cessation  from  labor:  131  Cal.  158.  63  Pac.  167. 

Abandoned  Contract. — A  contractor  gave  written  notice  to  the  owner 
that  hi-  abandoned  his  contract.  The  owner  contracted  with  another 
t'  complete  the  building.  Those  claiming  liens  under  the  first  contract 
had  thirty  days  after  there  had  been  a  cessation  of  labor  for  thirty 
davs  upon  the  unfinished  contract:  Johnson  v.  La  Grave,  102  Cal.  324, 
36>ac.  651. 


266  New  Book  of  Forms. 

Verification  of  Claim. — Claim  of  lien  must  be  verified:  C.  C.  P.,  sec. 
1187.  An  attorney  may  verify  it  the  same  as  any  other  instrument, 
and  upon  the  same  conditions:  De  Haven  v.  MeAuley,  138  Cal.  .573,  72 
Pae.  152.  The  verification  was  made  several  months  prior  to  the  filing 
of  the  claim  of  lien.  Held  valid:  Corbet  v.  Chambers,  109  Cal.  178,  41 
Pae.  873.  In  a  verification  to  a  claim  the  words  were,  "the  facts  stated 
therein  are  true,"  instead  of  "the  claim  is  true."  Held  valid:  Corbet 
V,  Chambers,  109  Cal.  178,  41  Pae.  873. 

Description  of  Property  in  Notice  of  Lien. — ^Unless  the  notice  dn- 
Bcribes  the  real  estate  to  be  charged,  it  is  void:  Penrose  v.  Calkins,  77 
Cal.  396,  19  Pae.  641.  The  description  need  not  be  full  and  precise,  but 
it  must  be  sufficient  to  be  identified  with  reasonable  certainty:  Willam- 
ette S.  M.  Co.  V.  Kremer,  94  Cal.  205,  29  Pae.  633.  Also  see  Bruner  v. 
Marks,  98  Cal.  374,  33  Pae.  265.  A  "quartzmill  being  at  or  near  the 
town  of  Seottsville,  in  Amador  county,  known  as  Moore's  New  Quartz- 
mill,"  was  upheld:  Tibbits  v.  Moore,  23  Cal.  208;  cited,  2  Mont.  377; 
15  Or.  537,  16  Pae.  407.  "A  dwelling-house,  lately  erected  by  me  for 
J.  W.  Conner,  situated  on  Bryant  street,  between  Second  and  Third 
streets,  in  the  city  of  San  Francisco,  on  lot  No.  , "  held  to  be  in- 
valid: Montrose  v.  Conner,  8  Cal.  44. 

When  the  building  was  described  and  the  land  was  described  as  fol- 
lows, ' '  With  such  convenient  space  of  land  around  the  same  as  may 
be  required  for  the  convenient  use  and  occupation  thereof,"  the  de- 
scription was  sufficient:  Tibbits  v.  Moore,  23  Cal.  208.  In  brief,  if  a 
lien  is  to  be  filed,  it  is  just  as  necessary  to  be  accurate  in  describing 
the  property  in  it  as  in  a  grant  of  land.  The  object  of  the  lien  is, 
through  it,  to  obtain  a  legal  title  to  the  land  in  ease  of  nonpayment. 

Not  Responsible — Notice. — Persons  dealing  with  property  during 
progress  of  work  are  charged  with  notice  of  claims  of  those  entitleil  to 
lien:  Crowell  v.  Gilmore,  13  Cal.  54.  A  notice  given  by  the  owner 
within  three  days  after  he  obtained  knowledge  of  the  actual  commence- 
ment of  work  was  upheld:  W.  H.  Birch  &  Co.  v.  Magic  Trust  Co.,  139 
Cal.  496,  73  Pae.  238. 

If  anyone  claiming  an  interest  in  land  knowingly  permits  buildings 
or  improvements  to  be  erected  on  it  without  giving  notice  that  it  is 
done  without  his  consent,  he  is  held  to  have  acquiesced  in  it:  Fuquay 
V.  Stickney,  41  Cal.  583. 

An  owner  leased  land  and  his  tenants  erected  permanent  improvements 
on  it,  and  there  was  nothing  to  show  that  the  improvements  (buildings) 
would  not  inure  to  his  benefit,  and  he  "stood  by"  and  saw  a  large 
building  erected,  but  he  did  not  give  notice  that  he  would  not  be  re- 
sponsible for  it.  His  land  was  held  liable:  West  Coast  Lumber  Co.  v. 
Apfield,  86  Cal.  335,  24  Pae.  993. 

Section  1185,  Code  of  Civil  Procedure,  says  that  mechanics'  liens  for 
work  and  improvements  on  leasehold  interests  charge  the  holder  of 
Buch  interest  with  a  lien  only  to  the  extent  of  his  interest;  and  section 
1192  says  that  if  the  work  and  improvements  are  constructed  with  the 
knowledge  of  the  owner  of  the  fee,  they  shall  be  held  to  have  been 
constructed  at  his  instance,  unless  he  gives  notice  that  he  will  not  be  re- 
sponsible therefor.  In  an  action  to  foreclose  a  mechanic's  lien,  the 
court  held  that  the  two  sections  must  be  construed  together,  so  as  to 
make  the  law  harmonious,  and  siistained  the  lien  as  against  the  owner's 
interest  because  he  did  not  give  notice:  West  Coast  Lumber  Co.  v. 
Newkirk,  80  Cal.  275,  22  Pae.  231. 

Section  1192,  Code  of  Civil  Procedure,  does  not  apply  to  or  affect  the 
interests  of  a  prior  mortgagee  under  a  recorded  mortgage:  Williams  v. 
Santa  Clara  Min.  Assn^  66  Cal.  193,  5  Pae.  85. 


Liens.  2O7 

Vendee  In  Possession. — Tf  a  vendor  under  contract  to  sell  land  spc's 
his  vendee  in  possossion  make  improvements,  unless  lie  gives  notice,  the 
land  is  subject  to  mechanics'  liens:  Avery  v.  Clark,  87  Cal.  619,  22  Ara. 
8t.  Eep.  272,  25  Pac.  919.  If  such  notice  be  posted,  but  not  in  "some 
conspicuous  place,"  such  liens  attach:  Silvester  v.  Coe  Quartz  M.  Co., 
80  Cal.  510,  22  Pac.  217;  cited,  8  Wash.  474,  36  Pac.  463. 

Bjiowledge  of  Corporation's  Directors. — Knowledge  by  a  director  or 
agint  of  a  coq>oratioD,  unless  acquired  by  the  director  in  the  conduct 
of  its  business  is  not  notice  to  the  aorporation.  It  appears  from  the 
decision  that  a  director  of  the  corporation  was  present  on  one  occasion 
during  the  construction  of  the  building,  but  that  one  fact  did  not  estab- 
lish notice:  Lothian  v.  Wood,  55  Cal.  159.  In  another  case  it  appeared 
that  the  premises  belonged  to  a  corporation.  Its  president  on  one 
occasion  visited  the  premises  when  the  tenant  was  constructing  the 
building.  That  one  visit  was  prima  facie  evidence  of  the  corporation's 
knowledge  of  the  construction:  Phelps  v.  Maxwell  Creek  etc.  Co.,  49 
Cal.  337. 

Landlord's  Presumed  Notice. — Under  a  lease  the  tenant  had  privilege 
to  make  improvements,  but  if  incorporated  with  existing  buildings  so 
as  to  leave  them  in  a  worse  condition  than  they  were  at  the  date  of  the 
lease,  they  were  to  revert  to  lessor.  Held,  that  unless  the  landlord  gave 
notice,  his  land  was  subject  ^o  liens  for  labor  and  material.  His  knowl- 
edge of  his  tenant's  intentions  put  him  upon  inquiry:  Evans  v.  Judson, 
120  Cal.  282,  52  Pac.  585. 

Possession  of  Owner. — The  knowledge  and  permission  of  the  owner 
that  improvements  might  be  made  is  sufficient  to  require  him  to  give 
the  notice  required  by  law,  although  the  improvements  were  not  made 
in  the  form  and  place  authorized  by  him:  Santa  Monica  Lumber  Co.  v. 
Hege,  119  Cal.  376,  51  Pac.  555. 

Bond  of  Contractor. — A  bond  that  was  intended  to  be  given  under 
the  provisions  of  said  law  was  held  to  be  in  violation  of  the  constitu- 
tion of  the  United  States  and  the  constitution  of  the  state  of  California 
in  the  case  of  Gibbs  v.  Tally,  133  Cal.  373,  65  Pac.  970.  In  the  opinion 
written  by  Temple,  .Justice,  the  court  says:  "The  statute  does  not  say 
who  shall  cause  this  bond  to  be  executed,  nor  to  whom  it  shall,  in  form, 
be  made  payable.  It  does  not  undertake  that  the  contractor  shall  faith- 
fully  perform   his   contract.     In   short,   there   is   nothing   which    can   be   of 

advantage    to    the    owner,    in    any    possible   event The   only    person 

upon  whom  penalty  is  put  for  a  failure  is  the  owner." 

The  clause  at  the  foot  of  section  1203  placing  a  joint  and  several 
penalty  on  the  owner  and  contractor  if  the  bond  is  omitted  was  in- 
tended to  obligate  the  owner  to  compel  the  contractor  to  execute  the 
bond  to  protect  his,  the  contractor's,  creditors  and  to  give  such  credi- 
tors a  right  of  action  against  a  good  bond  instead  of  the  annoying 
remedy  of  foreclosure  of  their  liens. 

The  case  of  Gibbs  v.  Tally  decides  that  the  owner  is  not  obligated  to 
give  the  bond.  And  in  Shaughncssy  v.  American  Sur.  Co.,  1.38  CaL 
543,  69  Pac.  250,  71  Pac.  701,  the  court  held  that  a  bond  under  that  sec- 
tion could  not  be  enforced. 

Notwithstanding  the  cases  above  referred  to,  it  seems  to  be  reason- 
able that  the  owner  may  exact  from  the  contractor  a  bond  containing 
the  stipulations  found  in  section  1203,  Code  of  Civil  Procedure.  Shaugh- 
ncssy V.  American  Sur.  Co.  appears  to  have  been  decided  not  so 
much  upon  the  nature  of  the  bond,  but  because  the  bond  "expressly  re- 
cites that  it  is  given  in  pursuance  of  that  section"  (Code  of  Civil  Pro- 
cedure, section  1203).  The  inference  is  that  if  that  unnecessary  recital 
had  been  omitted  the  appellate  court  would  have  upheld  the  writing  as 


268  New  Book  of  Forms. 

a  "common-law  bond,"  because  the  court  savs:  "Wbether  in  any  case 
it  could  be  supposed  that  a  sane  man,  not  fearing  the  compulsion  of  the 
statute  as  described  in  section  1203,"  might  give  such  a  bond  is  a  ques- 
tion not  here  presented. 

No.  371. — Materialman's  Lien. 

Notice  is  hereby  given,  that  /.  B.,  at  the  time  hereinafter  men- 
tioned, furnished  and  supphed  materials  to  be  used  and  which 
were  actually  used  in  the  constnicHon  (or  alteration  or  repair  J  of 
that  certain  building  or  structure,  now  upon  that  certain  lot  and 
parcel  of  land  situate  in  the  city  and  county  of  San  Francisco, 
state  of  California,  and  sought  to  be  charged  with  this  lien,  and 
described  as  follows,  to  wit:    [Description.] 

That  /.  S.  is  tlie  name  of  the  owner  and  reputed  owner  of  said 
premises,  and  caused  said  building  or  structure  to  be  erected 
and  constructed  and  the  name  and  nature  of  his  title  is  as  follows : 
The  said  J.  S.  is  the  owner  by  znrtue  of  the  legal  title  to  said 
premises  being  invested  in  him  by  his  possession  and  entry  under 
a  grant  to  said  premises  from  the  owner. 

That  H.  W.  is  the  name  of  the  contractor  who,  on  the  jd  day 
of  May,  A.  D.  ipo^,  as  such  contractor,  and  agent  of  said  owner, 
entered  into  a  contract  in  writing  with  said  /.  S.,  under  and  by 
which  he  was  to  perform  certain  labor  and  furnish  tna-erials  for 
said  building,  and  the  following  is  a  statement  of  the  terms,  time 
given,  and  conditions  of  said  contract,  to  wit :  Said  contractor 
agreed  to  erect  a  two-story  wooden  building  on  said  premises 
and  furnish  all  the  labor  and  materials  therefor  and  to  complete 
said  building  on  or  before  Janicary  ^,  ipo6,  for  the  sum  of 
$9, 372  in  gold  coin.  That  no  payments  were  to  be  made  until 
said  building  was  Unished.  That  said  contract  has  been  fully 
performed  on  the  part  of  said  contractor,  and  the  same  was  com- 
pleted, and  the  said  building,  or  structure,  finished,  on  the  Ursi 
day  of  January,  A.  D.  ipoo,  and  60  days  have  not  elapsed  since 
the  same  was  completed,  and  the  said  building  or  structure  fin- 
ished. That  said  J.  B.  contracted  with  H.  W.,  the  said  con- 
tractor, to  furnish  him  with  all  the  wood  material  to  be  used  in 
the  construction  of  said  building  for  the  sum  of  $p,s/2.oo,  and 
he  did  furnish  all  said  material  and  it  wcls  all  used  in  the  con- 
struction of  said  building.  That  the  amount  of  the  contract  price 
for  said  material  furnished  as  aforesaid  is  $9,3/2,  in  United  States 
gold  coin. 

That  nothing  has  been  paid  on  said  contract  price,  and  that 
the  sum  of  $9,3/2  in  gold  coin  of  the  United  States  is  still  due 
and  owing  thereon  to  said  H.  W.,  after  deducting  all  just  credits 
and  offsets. 

Wherefore,  said  H.  W.,  contractor,  claims  the  benefit  of  the 
law  relative  to  liens  of  mechanics  and  others  upon  real  property, 


Liens.  269 

to  wit :  Chapter  II,  Title  IV,  Part  III,  of  the  Code  of  Civil  Pro- 
cedure. 

No.  372. — Laborer's  Lien. 

Notice  is  hereby  given,  that  K.  B.,  at  the  time  hereinafter  men- 
tioned, performed  labor  upon  and  in  the  construction  of  that  cer- 
tain building  or  structure,  and  now  upon  that  certain  parcel  of 
land  situate  in  the  city  and  county  of  San  Francisco,  state  of  Cali- 
fornia, and  sought  to  be  charged  with  this  lien,  and  described  as 
follows,  to  wit:   [Description.] 

That  L.  W.  is  the  name  of  the  owner  of  said  premises,  and 
caused  said  building  or  structure  to  be  erected  and  the  name  and 
nature  of  his  title  is  as  follows :  He  owns  the  land  above  described 
in  fee. 

That  /.  R.  is  the  name  of  the  contractor  who,  on  the  jrf  day 
of  June,  A.  D.  7905/ as  such  contractor,  entered  into  a  contract 
with  said  owner,  under  and  by  which  said  contractor  agreed  to  a 
structure  of  said  premises  far  said  owner  and  the  following  is  a 
statement  of  the  terms,  time  given,  and  condition  of  said  contract, 
to  wit:   [State  the  tenns.] 

That  said  contract  has  been  fully  performed  on  tlie  part  of 
said  contractor,  and  the  same  was  completed,  and  the  work  on 
said  building,  or  structure,  finished,  on  the  jd  day  of  December, 
A.  D.  190^,  and  60  days  have  not  elapsed  since  the  same  was 
completed,  and  said  building,  or  structure,  finished. 

That  the  amount  of  the  contract  price  for  said  labor  so  fur- 
nished as  aforesaid  is  $32/,  in  United  States  gold  coin. 

That  nothing  has  been  paid  on  account  of  said  contract  price, 
and  that  the  sum  of  $32/'  in  gold  coin  of  the  United  States  is 
still  due  and  owing  and  unpaid  thereon  to  said  claimant,  R.  5., 
after  deducting  all  just  credits  and  offsets. 

Wherefore,  said  R.  B.  claims  the  bcnetit  of  the  law  relative  to 
liens  of  mechanics  and  others  upon  real  property,  to  wit :  Chapter 
II,  Title  IV,  Part  TTT.  of  the  Code  of  Civil  Procedure. 

No.  373. — Contractor's  Lien. 

Notice  is  hereby  given,  that  /.  /.,  at  the  time  hereinafter  men- 
tioned, made  a  contract  with  /.  S.,  by  which  he  agreed  to  erect 
the  structure  herein  described  and  to  furnish  the  materials  herein 
described  to  be  used  in  the  btiilding  and  construction  of  that  cer- 
tain building  or  structure,  and  now  upon  that  certain  lot  or  parcel 
of  land  situate  in  the  city  and  county  of  San  francisco,  state  of 
California,  and  sought  to  be  charged  with  this  lien,  and  described 
as  follows,  to  wit:   [Description.] 

That  said  /.  S.  is  the  name  of  the  owner  and  repuied  owner  of 
said  premises,  and  caused  said  building  or  structure  to  be  erected, 
and  the  name  and  nature  of  his  title  is  as  follows :  He  owns  said 
premises  in  /«, 


270  New  Book  o^  Forms. 

That  said  /.  /.  is  the  name  of  the  contractor  who,  on  or  aljont 
the  loth  day  of  June,  A.  D.  ipo^,  as  such  contractor,  and  agent 
of  the  owner,  entered  into  a  contract  with  said  /.  S.,  under  and 
by  which  said  /.  /.,  was  to  construct  said  building,  and  the  follow- 
ing is  a  statement  of  the  terms,  time  given,  and  conditions  of  said 
contract,  to  wit:  [State  terms  and  conditions  of  contract  in  sub- 
stance.] 

That  all  of  said  materials  were  furnished  to  be  used,  and  were 
actually  used  in  the  construction  of  said  building. 

That  said  contract  has  been  fully  performed  on  the  part  of 
said  /.  /.,  and  the  same  was  completed,  and  the  said  building, 
or  structure,  finished,  on  the  ^d  day  of  June,  A.  D.  ig>o6,  and 
sixty  days  have  not  elapsed  since  the  same  was  completed,  and 
said  building,  or  structure,  finished. 

That  the  amount  of  the  contract  price  for  said  building  fur- 
nished as  aforesaid,  is  $^3,973  in  United  States  gold  coin. 

That  $12,000  United  States  gold  coin  has  been  paid  on  account 
of  said  contract  price,  and  that  the  sum  of  $13,973  in  gold  coin 
of  the  United  States  is  still  due  and  owing  thereon  to  said  con- 
tractor, J.  J.,  after  deducting  all  just  credits  and  offsets. 

Wherefore,  said  /.  /.  claims  the  benefit  of  the  law  relative  to 
liens  of  mechanics  and  others  upon  real  property,  to  wit:  Chap- 
ter II,  Title  IV,  Part  III,  of  the  Code  of  Civil  Procedure. 

No.  374. — Subcontractor's  Lien. 

Notice  is  hereby  given,  that  R.  B.,  of  the  city  and  county 
of  San  Francisco,  as  a  subcontractor,  performed  labor  and  fur- 
nished materials  to  be  and  which  were  actually  used  in  the  con- 
struction [or  alterations  or  repair,  as  the  case  may  be]  of  that 
certain  building  or  structure,  and  now  upon  that  certain  lot  and 
parcel  of  land  situated  in  the  city  and  county  of  San  Francisco, 
state  of  California,  and  sought  to  be  charged  with  this  lien,  and 
described  as  follows,  to  wit:  [Description.] 

That  said  J.  S.  is  the  name  of  the  owner  and  reputed  owner  of 
said  premises,  and  caused  said  building  or  structure  to  be  con- 
structed [or  repaired  as  the  case  may  be]. 

That  said  /.  /.  is  the  name  of  the  contractor  who,  on  or  about 
the  tenth  day  of  June,  1903,  as  such  contractor  and  agent  of  said 
owners,  entered  into  a  contract  in  writing  with  said  li.  B.,  under 
and  by  which  he  zvas  to  perform  certain  labor  and  furnish  mate- 
rials for  said  building,  and  the  following  is  a  statement  of  the 
terms,  time  given  and  conditions  of  said  contract,  to  wit:  [Insert 
conditions  of  contract  in  brief.] 

That  said  contract  has  been  fully  performed  on  the  part  of 
said  R.  B.,  and  the  same  was  completed,  and  the  said  building 
or  structure  finished,  on  the  tenth  day  of  September,  1903,  and 


Liens.  271 

thirty  days  have  not  elapsed  since  the  same  was  completed,  and 
said  building  or  structure  finished. 

That  the  amount  of  the  contract  price  for  said  labor  performed 
and  materials  furnished  as  aforesaid  is  five  hundred  and  fifty 
dollars  in  United  States  gold  coin. 

That  three  hundred  dollars  lias  been  paid  on  account  of  said 
contract  price,  and  that  the  sum  of  two  hundred  and  fifty  dollars 
in  gold  coin  of  the  United  States  is  still  due  and  owing  thereon 
to  said  R.  B.,  after  deducting  all  just  credits  and  ofiFsets. 

W-Tierefore,  said  R.  B.  claims  the  benefit  of  the  law  relative  to 
liens  of  mechanics  and  others  upon  real  property,  to  wit :  Chapter 
II,  Title  IV,  Part  III,  of  the  Code  of  Civil  Procedure. 

No.  375. — Notice  of  Agreement  to  Furnish  Material  to  Con- 
tractor. 
Mr.  A.  B.: 

Please  take  notice  that  in  the  month  of  June,  IQO^,  I,  the  un- 
dersigned, agreed  with  C.  D.,  the  contractor  with  whom  you  con- 
tracted to  construct  an  addition  to  that  building  No.  y2i2  Maple 
street,  San  Francisco,  California  (of  which  building  you  are  the 
reputed  owner),  to  supply  him  with  10,000  feet  of  white  pine 
lumber,  ^0,000  cedar  shingles,  12  oak-framed  doors  and  24  oak 
window  frames,  to  be  used  by  him  in  constructing  said  addition. 
That  the  value  of  said  material  is  $642.2^. 

No.  376. — Notice  to  Reputed  Ov^ner  of  Materials  Furnished 

to  Contractor. 
Mr.  A.  B.: 

Please  take  notice  that  in  the  month  of  June,  IQO^,  J,  the 
nndersigned,  sold  and  delivered  at  his  request  to  C.  D.,  the  con- 
tractor who  was  at  that  time  constructing  an  addition  to  that 
building,  No.  2212  Maple  street,  San  Francisco,  California  (of 
which  building  you  are  the  reputed  owner),  all  the  materials  de- 
scribed as  follows  [description]  ;  to  be  used  and  which  material 
was  used  by  said  contractor  in  constructing  said  addition.  That 
the  value  of  said  materials  is  $i,j6y.^o,  and  is  and  was  the  value 
of  the  materials  agreed  to  be  furnished  to  said  contractor. 

No.  377. — Notice  to  Reputed  Owner  of  Laborer's  Lien. 

Mr.  A.  B.: 

Please  take  notice  that  in  the  month  of  June,  ipoj,  J,  the  un- 
dersigned, agreed  with  C.  D.,  the  contractor,  with  whom  you  con- 
tracted to  construct  an  addition  to  that  building,  No.  ^212  Maple 
street,  in  the  city  and  county  of  San  Francisco,  state  of  Califor- 
nia (of  which  building  you  are  the  reputed  owner),  to  do  carpen- 
ter work  for  him  an  said  addition,  atui  he  agreed  to  pay  me  $§.00 


272  New  Book  of  Forms. 

for  each  day's  work  of  eight  hours.  That  I  worked  on  said 
building  under  said  agreement  62  full  days.  That  the  said  C.  D. 
has  not  paid  me  anything  on  account  of  said  work,  and  he  is, 
at  this  date,  indebted  to  me  in  the  sum  of  $310  in  United  States 
gold  coin,  and  the  value  of  said  work  was  and  is  $310. 

No.  378. — Notice  to  Reputed  Owner  of  Architect's  Lien. 

[The  same  as  in  No.  377  down  to  and  including  the  words  in 
parentheses,  and  proceed  as  follows :]  To  drazv  plans  and  specifi- 
cations for  said  C.  D.,  contractor,  for  which  he  agreed  to  pay 
me  wliat  said  plans  and  specifications  were  reasonably  zvorth. 
That  I  drew  said  plans  and  specifications  and  delivered  them  to 
said  contractor  to  be  used,  and  they  were  used  by  him  in  the 
construction  of  said  addition.  TJiat  said  plans  and  specificaiions 
were  and  are  reasonably  worth  $2^0;  nothing  has  been  paid 
therefor  or  thereon  and  said  contractor  is  now  indebted  to  me  in 
said  amount." 

No.  379. — Notice  by  Owner  that  He  wiH  not  be  Responsible 
for  Improvements. 

To  J.  S.,  Contractor: 

You  will  please  take  notice  that  I  am  the  owner  of  that  lot  on 
which  stands  the  house  No.  2406  Mission  street,  in  the  city  and 
county  of  San  Francisco.  You  will  also  take  notice  that  H.  J. 
is  my  tenant  from  month  to  month.  You  will  also  take  notice 
that  any  work  you  do  on  said  house  or  improvements  or  any  ma- 
terial you  furnish  will  not  be  paid  for  by  me ;  nor  will  I  be  re- 
sponsible therefor;  and  you  must  look  to  said  /.  personally  for 
your  compensation. 

NOTE. — This  notice  must  b€  posted  in  some  eonspicnous  place  on 
the  land,  or  upon  the  building  or  other  improvement:  CaL  C  C  P.,  sec 
1192. 

H^  280. — ^Notice  by  Owner  that  He  will  not  be  Responsible 
for  Improvements  on  His  Premises. 

To  WhomsoevCT  It  may  Concern: 

Notice  is  given  that  I  am  the  owner  of  all  that  property  de- 
scribed as  follows:  [Description.]  And  I  will  not  be  responsible 
for  the  construction  or  for  the  material  or  labor,  used  or  to  be 
used,  or  for  any  alteration  or  repair,  or  for  any  work,  labor,  ma- 
terials furnished  or  to  be  furnished  upon  that  structure,  or  an 
addition  thereto,  now  upon  said  land,  or  wliich  have  been  per- 
formed, furnished  or  used  in  any  manner  or  way  upon  said  band 
or  upon  the  buildings  thereon,  or  additions  thereto,  or  which  may 


Lie;ns.  273 

hereafter   be   performed,   furnished   or   used   upon   said   land   or 
buildings  or  addition  thereto,  or  for  the  services  of  any  architect* 

No.  381. — ^Notice  of  Completion  of  Work. 
[Title  of  Court  and  Cause,] 

Notice  is  hereby  given  that  /,  A.  B.,  as  owner  of  the  property 
hereinafter  described,  caused  a  building  to  be  erected  upon  the 
property  hereinafter  described,  the  contract  for  doing  which  was 
heretofore  made  with  C.  D.,  as  contractor,  and  filed  for  record  in 
the  office  of  the  recorder  of  the  city  and  county  of  San  Francisco 
on  the  6th  day  of  May,  A.  D.  IQO^. 

That  the  work  on  said  btiUding  zvas  actually  completed  on  the 
loth  day  of   December,  A.  D.  ipo§. 

That  the  nature  of  the  title  to  said  property  of  said  owner  is 
as  follows,  that  is  to  say,  he  owns  it  in  fee. 

That  the  property  hereinbefore  referred  to,  and  on  which  said 
building  is  situated,  is  described  as  follows,  to  wit:  [Description.] 

State  of  Calif omia, 

City  and  County  of  San  Francisco, — ss. 

C.  D.,  being  duly  sworn,  says  that  he  is  the  owner  of  the  prop- 
erty described  in  the  foregoing  notice ;  that  he  has  read  the  same 
and  knows  tlie  contents  thereof;  and  that  the  same  is  true  of  his 
own  knowledge. 

No.  382. — Notice  to  Assignee  of  Lien  of  Attorney  at  Law. 
[Title  of  Court  and  Cause.] 
To  A.  B.,  Assignee  of  C.  D.: 

Please  take  notice  that  within  sixty  days  previous  to  the  assi<m- 
ment  of  said  C.  D.,  the  undersigned,  an  attorney  at  law,  per- 
formed services  for  said  C.  D.  as  his  attorney  in  all  matters  re- 
lating to  said  assignment,  and  which  services  were  worth,  and 
said  C.  D.  agreed  to  pay  the  undersigned,  $100  therefor,  and  for 
which  amount  the  undersigned  claims  a  preference  over  other 
creditors  of  said  C.  D. 

NOTE. — C.  C.  P.,  sec.  1204.  Wages  and  salaries  of  miners,  mechanics 
salesmen,  servants,  clerks,  laborers,  employed  by  the  assignor  are  ^iven 
preference  to  the  extent  of  $100,  or  any  otlier  person  who  renders  services 
or  performs  work  is  entitled  to  the  same  preference.  All  services  or 
work  which   one  man   0137  perform  for  another  seem  to   belong  to   the 


*Q.  C,  P.,  sec.  1192. 

New  Forms — -^ 


274  New  Book  oi?  F  jrms. 

class  not  designated  under  the  head  of  mineni,  mechanics,  salesmen, 
pervants,  clerks,  and  laborers.  This  construction  relieves  seetion  1204 
from  elimination  because  it  is  obnoxious  to  special  legislation.  It  is  to 
be  noted  sections  1206,  1207  axe  liable  to  the  same  eonstmetion.. 


No.  383. — Notice  to  Assignee  of  Lien  of  Servant,  etc 
[Title  of  Court  and  Cause.] 

To  A.  B.,  Assignee  of  C.  D. : 

Please  take  notice  that  within  sixtv'  days  previous  to  the  time 
of  the  assignment  of  C.  D.  to  you  on  account  of  his,  C.  D.'s,  in- 
ability, at  the  time  of  said  assignment,  to  pay  his  debts,  the  un- 
dersigned performed  labor  for  him  as  a  miner,  working  for  him 
in  the  Hard  Scrabble  Mine,  at  Downieznlle,  Sierra  County,  Cali- 
fornia, and  the  amount  due  the  undersigned  is  $100,  for  which 
amount  the  undersigned  claims  a  preference. 

Dated  and  signed. 


No.  384. — Notice  of  Lien  of  Laborer  to  Officer  Holding  At- 

tachmenL 

[Title  of  Court  and  Cause.] 

To  A.  B.,  Sheriff,  etc. : 

Please  take  notice  that  the  undersigned  has  and  claims  a  pre- 
ferred lien  for  labor  performed  by  him  for  C  D.,  the  defendant  in 
said  action,  within  six  months  prior  to  the  levy  by  you  of  the 
attachment  you  hold  against  the  property  of  said  defendant, 
which  c'aim  amounts  to  $96.  The  said  labor  consisted  of  stable 
work  in  the  stable  attached  by  you  under  such  writ.* 


No.  385. — Notice  to  Officer  that  Claim  is  Disputed. 

[Title  of  Court  and  Cause.] 

To  A.  B.,  Sheriff,  etc.: 

Please  take  notice  that  I,  the  undersigned,  a  creditor  of  said 
defendant,  dispute  the  claim  of  B.  F.,  upon  the  ground  that  no 
part  of  said  claim  is  justly  due  to  said  B.  F.,  from  the  said  de- 
fendant to  said  claimant  for  services  rendered  within  sixty  days 
next  preceding  the  levy  of  the  writ  of  attachment  in  the  above- 
entitled  action. 

•C.  C.  P.,  sec.  1206. 


Liens.  275 

No.  386. — Affidavit — Attachment — Lien  upon  Logs  and  Tim- 
ber for   Labor  Performed. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Humboldt, — ss. 

L.  A.  B.  R.,  being  sworn,  says :  That  he  is  plaintiff  in  the  above- 
entitled  action.  That  defendant  is  indebted  to  him  in  the  sum  of 
^350,  gold  coin  of  the  United  States,  for  his  personal  services 
upon  a  demand  for  labor  performed  upon  a  contract  for  the  raft- 
ing of  logs  and  other  timber.  That  said  amount  is  an  actual  bona 
fide  existing  debt  due  and  owing  from  defendant  to  plaintiff, 
and  the  action  to  recover  said  amount  is  not  brought  to  hinder, 
delay  or  defraud  any  creditor  or  creditors  of  defendant. 

[See  Verification.] 

NOTE.— California,  C.  C,  sees.  3065;  Stats.  1905,  p.  619.  This  partic- 
ular class  of  liens  seems  to  be  a  class  by  itself;  attachment  may  issue 
opon  an  affidavit  more  favorably  to  that  class  of  claimants  than  to 
others.  In  any  event  the  lien  may  be  sustained  by  the  courts,  if  the  at- 
tachment should  not  be. 

No.  387.— Notice  of  Sale  of  Animal,  etc.,  to  Satisfy  Lien. 

Notice  is  hereby  given  that  on  the  jrf  day  of  July,  ipo6,  at 
T2  o'clock  M.,  at  the  Public  Pound  in  the  city  and  countv  of  San 
Francisco,  at  No.  1464  San  Bruno  avenue,  there  will  be  offered 
for  sale  and  sold  to  the  highest  bidder  for  cash,  payable  at  the 
consummation  of  the  sale,  one  white  mare,  fifteen  liands  hi<^h, 
with  a  lo;i:^.  thin  tail  and  niane,  containing  about  one-tenth  part 
of  brown  liair.  She  is  about  tzvelve  years  old  and  has  scars  of 
collar  marks  on  her  shoulders,  containing  a  few  short  brown 
hairs.  Also  a  one-horse  unpointed  wagon  will  be  sold.  It  is 
very  much  out  of  repair.  The  hubs  and  zvlwels  are  very  much 
rt'om,  etc. 

NOTE.— C.  C.  P.,  sec.  1208;  Act  of  March  21,  1905,  Stats.,  p.  632. 
Boftion  597  of  the  Penal  Code  provides  for  a  lien  upon  animals  ami  the 
wajron-s  and  contents  to  which  they  are  attached  when  impounded- 
Stats.  1905.  pp.  679-682;  and  section  1208,  Code  of  Civil  Procedure,  pro- 
vider for  the  sale  of  such  impounded  property. 

No.  388. — Propagating  Animals. 

Notice  is  hereby  given  that  the  undersigned  claims  a  lien  upon 
the  mare  A.  B.,  the  property  of  L.  F.   G..  a  resident  of  S.  C 
county  of  Butte,  for  the  service  of  the  stallion,  B.  C.  L.  P    and 


2'j(>  New  Book  of  Forms. 

rise  upon  any  colt  or  colts  the  "offspring"  of  said  service  which 
was  performed  in  the  month  of  ]une,  190^,  at  the  request  of  said 
L.  F.  G.  The  amount  agreed  to  be  paid  for  said  services  is  $130, 
and  it  is  to  be  paid  ten  days  after  the  birth  of  the  foal  of  said 
mare  if   foaled  ahve  within  one  year  from  July  2,  1905. 

NOTE.— C.  C,  sees.  3062,  3063;  Act  of  March  21,  1905,  Stats.,  p.  618. 


MARRIAGE, 


License  to  Issue — When. — If  the  male  be  under  twenty-one 
years  of  age  and  the  female  under  eighteen,  a  license  must  not 
be  issued  imless  the  consent  in  writing,  of  the  parents,  or  one  of 
them,  of  the  person  under  age,  or  of  his  or  her  guardian,  be  pre- 
sented to  the  clerk  duly  vertiiied  by  the  parent  or  guardian,  and 
such  consent  must  be  filed  with  the  clerk,  who  must  state  such 
facts  in  the  license. 

As  to  the  facts  of  age,  name  and  residence,  the  affidavit  of  the 
applicants  is  sufficient  If  it  is  evident  to  the  senses  of  the  clerk 
that  such  affidavit  is  false,  he  ought  to  refuse  the  application,  un- 
less a  parent's  or  guardian's  affidavit  is  presented.  If  the  clerk 
is  yet  doubtful,  he  ought  to  refuse  the  license  until  conclusive 
evidence  is  produced.  He  has  no  right  to  issue  the  license  even 
if  an  affidavit  is  produced  under  subdivisions  4  and  5  of  section 
69,  if  the  fcu:ts  of  the  affidavit  are,  in  the  clerk's  opinion,  not  sus- 
tained by  his  eyes. 

As  to  a  clerk  assuming  the  authority  to  examine  either  of  the 
parties  under  oath  as  to  any  of  the  matters  not  mentioned  in  sub- 
divisions 4  and  5,  it  is  always  implied  that  he  will  not  assume  au- 
thority to  do  an  illegal  act:  C.  C,  sec  69. 

No.  389. — Marriage  License — Affidavit  of  Applicants  for. 

State  of  California, 
County  of  Butte, — ss. 

I. 

A.  B.  C,  being  duly  sworn,  says :  The  foregoing  is  my  real  and 
fuU  name.  My  age  is  thirty-two  years,  and  my  place  of  residence 
is  Oroville,  county  of  Butte,  state  of  California. 

II. 

D.  E.  F.,  being  also  duly  sworn,  says:  The  foregoing  is  my 
real  and  full  name.  My  age  is  tzventy-Uve  years,  and  my  place 
of  residence  is  Nelson  Point,  in  the  county  of  Plumas,  state  of 
Caiifortua. 


Marriage  Ceremony.  277 


MARRIAGE  CEREMONY. 

In  California  a  justice  of  the  supreme  court,  a  judg'e  of  any  su- 
perior court,  a  justice  of  the  peace,  a  judge  of  the  recorder's  court, 
and  a  judge  of  a  police  court,  may  "solemnize  a  marriage."  The 
same  autliority  is  given  to  any  minister  of  any  church  or  priest 
or  preacher  of  all   religions. 

It  seems  that  there  are  no  territorial  boundaries  fencing  the 
jurisdiction  of  judicial  officers  relating  to  the  "solemnization  of 
marriage."  They,  and  all  ministers,  priests,  recorders,  and  oth- 
ers having  such  powers  may  solemnize  marriage  wherever  they 
may  find  the  parties. 

Marriage  is  a  civil  contract,  and  it  may  be  made  without  any 
consideration  whatever.  In  all  other  contracts  there  must  be  some 
consideration ;  and  it  must  be  of  some  value,  except  between  hus- 
band and  wife,  and  parent  and  child.  "Love  and  affection"  is 
sufficient  as  to  the  parties,  but  not  always  as  to  creditors. 

In  making  a  marriage  contract  no  particular  form  is  pre- 
scribed. Words  are  not  indispensable  to  make  the  contract  bind- 
ing ;  but  actions  and  intentions  rule  when  they  are  well  understood 
and  expressed  by  signs  and  conduct.  For  example,  marriages  be- 
tween mutes  and  tlie  deaf,  and  those  who  do  not  speak  the  lan- 
guage of  the  person  officiating  at  the  ceremony,  are  as  good  as 
others. 

No.  390. — Marriage  Ceremony. 

Judicial  officer  to  male  applicant: 

"What  is  your  name?"     [Then:] 

To  female  applicant : 

"What  is  your  name?" 

To  both :  "Have  you  a  license  ?" 

[The  officer  takes  the  license  and  examines  it.  If  it  is  in  proper 
form,  and  if  the  applicants  appear  to  be  legally  competent  to  con- 
tract a  marriage,  and  if  he  does  not  know  of  any  reason  why  they 
are  incapable  of  making  the  marriage  contract,  he  says  to  the 
parties,  "Please  stand  and  join  hands."  A  ring  is  unnecessary, 
but  it  is  customary  to  ask  if  they  have  one.  If  a  ring  is  produced 
tlic  officer  usually,  at  the  end  of  the  proceedings,  puts  it  on  the 
woman's  finger.  Sometimes  the  man  puts  it  on.  Such  business 
is  always  a  matter  of  little  importance.] 

The  officer  says  to  the  man : 

"Do  you,  A.  B.  C,  promise  to  take  D.  E.  F.  to  be  your  wife? 

He  answers :  "I  do." 

Officer :  "Do  you,  D.  E.  F.,  promise  to  take  A.  5.  C.  to  be  your 
husband?"     She  answers:  "I  do." 


278  New  Book  of  Forms. 

Officer:  "Then,  in  the  name  of  the  ;vjople  of  the  state  of  Cali- 
fornia, by  authority  of  my  office,  I  pronounce  you  man  and  wife." 

The  officer  then  issues,  signs  and  dehvers  a  marriage  certificate 
to  the  woman,  which  the  witnesses,  if  any,  also  sign.  Formerly 
the  officer  concluded  the  ceremony  by  saying:  "What  God  has 
united  let  no  man  part,"  but  now  the  conclusion  is  usually  as  in- 
formal as  the  conmiencement. 


MINING. 


No.  391. — Notice  of  Location  of  Placer  Claim. 

Notice  is  hereby  given,  to  all  whom  it  may  concern,  that  we, 
tfie  undersigned,  citizens  of  the  United  States  of  America,  over 
the  age  of  twenty-one  years,  have  this  day  located  under  the  Re- 
vised Statutes  of  the  United  States  of  America,  Chapter  Six, 
Title  I'hirty-two,  the  following  described  placer  mining  ground, 
viz.*  [description],  situated  in  Howland  Flat  Mining  District, 
county  of  Sierra,  state  of  California. 

This  claim  shall  be  known  as  the  T.  H.  Placer  Mining  Claim, 
and  we  intend  to  work  the  same  in  accordance  with  the  local  cus- 
toms and  rules  of  miners  in  said  mining  district. 

Dated  on  the  ground  this  ^d  day  of  May,  A.  D.  1905. 

NOTE. — A  person  or  association  of  persons  claiming  under  regular 
location  a  lode  or  quartz  mine,  or  a  placer  claim  upon  unsurveyed  land, 
and  desiring  to  obtain  title  thereto  from  the  United  States,  should  first 
make  application  to  the  United  States  surveyor  general  for  the  state 
or  territory  within  which  the  claim  is  located  for  a  survey  thereof. 

No.  392. — Notice  of  Location  of  Quartz  Claim, 

Notice  is  hereby  given  to  all  whom  it  may  concern  that,  the  un- 
dersigned, citizens  of  the  United  States  over  the  age  of  twenty- 
one  years,  having  discovered  a  vein  or  lode  of  quartz,  or  rock  in 
place,  bearing  gold,  within  the  limits  of  the  claim  hereby  located, 
have  this  day,  under  and  in  accordance  with  the  Revised  Stat- 
utes of  the  United  States,  Chapter  Six,  Title  Thirty-two,  located 
^,000  linear  feet  of  this  vein  or  lode,  with  surface  ground  500 
feet  in  width,  situated  in  Port  Wine  Mining  District,  county  of 
Sierra,  state  of  California,  and  known  as  the  Happy  Hollow 
Quartz  Mining  Claim,  and  extending  5,000  feet  northerly  to  a 


*If  on  surveyed  land,  describe  the  legal  subdivision.     If  upon  unsur- 
veyed land,  describe  as  accurately  as  possible  by  courses  and  distances. 


Mining.  279 

s^lit  oak  tree,  and  2^0  feet  easterly  to  a  split  pine  tree,  5,000 
feet  from  this  notice  at  the  discovery  or  prospect  shaft,  the  ex- 
terior boundaries  of  this  claim  being  distinctly  marked  by  refer- 
ence to  some  natural  objects  or  permanent  monuments,  and  more 
particularly  described  as  follows,  to  wit:  [Describe  the  location  as 
noted  below.]  And  we  intend  to  hold  and  work  said  claim  as 
provided  by  the  local  customs  and  rules  of  miners  and  the  Min- 
ing Statutes  of  the  United  States. 

Dated  on  the  ground  this  jJ  day  of  May,  A.  D.  1905. 

Discovered  May  3,  A.  D.  1905,  L.  G.,  Locator. 

Located  May  5,  A.  D.  1905,  recorded  May  j,  A.  D.  1905. 

NOTE. — Describe  the  claim  as  accurately  as  possible  (by  courses  and 
distances)  with  reference  to  some  natural  object  or  permanent  monu- 
ment and  mark  the  boundaries  by  suitable  monuments.  If  a  placer 
claim  is  located  on  surveyed  land,  describe  the  legal  subdivision.  Rec- 
ord of  location  notices,  in  absence  of  a  district  recorder,  should  be  made 
with  ihfi  proper  recorder  of  deeds  for  the  county  wherein  the  claim  is 
situated.  It  is  advisable  to  have  these  notices  attested  by  at  least 
two  witnesses,  for  locators  cannot  be  too  careful  about  their  evidence. 
in  relocation  to  increase  width  of  surface  ground  under  the  local  law, 
or  to  more  particularly  identify  or  describe  the  claim,  use  the  above 
form,  but  state,  after  the  description,  that  it  is  a  relocation,  and  in  ad- 
dition, where  the  original  location  is  recorded,  in  order  that  the  title 
may  revert  back  to  the  original  discovery.  In  locations  of  abandoned 
mines,  the  fact  that  it  is  such  a  location  should  be  stated,  and  the  af- 
fidavits of  two  or  more  respectable  parties  that  such  mine  was  aban- 
doned and  subject  to  relocation  should  be  recorded  with  the  location 
notice. 

No  quartz  claim  can  be  legally  located  until  a  vein  or  lode  has  been 
first  discovered.  This  should  be  done  by  sinking  a  prospect  or  discovery 
shaft.  The  exterior  boundaries  of  the  claim  must  be  distinctly  marked 
by  permanent  stakes  or  monaments,  placed  at  the  corners  of  the  claim. 
The  notice  should  be  posted  at  the  discovery  shaft  and  a  copy  of  the 
same  recorded  within  twenty  days  after  location.  In  all  eases  where 
practicable,  the  location  should  be  made  under  survey  by  a  qualified 
deputy  surveyor.  In  case  of  doubt  or  uncertainty  consult  an  attorney 
at  law. 

No.  393. — Mining. 

Notice  is  hereby  given  that,  in  accordance  with  the  provisions 
of  the  laws  of  the  state  of  California  respecting  water  rights,  the 
undersigned  have  appropriated,  and  hereby  appropriate,  four 
thousand  inches  of  water,  measured  under  a  four-inch  pressure 
flowing  in  the  south  fark  of  Slate  creeh,  in  the  county  of  Sierra, 
state  of  California. 

That  the  purpose  for  which  the  undersigned  claim  said  water 
u  for  mining  purposes.  That  they  intend  to  divert  it  from  said 
Slate  creek  at  a  point  on  the  south  bank  of  said  Slate  creek,  at  a 
distance  of  about  one  mile  doum  stream  from  the  St.  Louis  and 
La  Porte  bridge   (at  which  point  a  duplicate    of  this  notice    is 


28o  New  Book  of*  Forms. 

posted),  on  the  southerly  hutment  of  said  bridge,  and  to  conduct 
said  water  thence  down  soid  the  right  bank  of  said  stream  in  a 
southwesterly  direction,  about  twenty  miles  to  an  oak  tree  stump, 
at  an  elevation  of  2,^1^  feet  above  the  south  bank  of  said  Slate 
creek,  there  to  furnish  water  power  to  hydraulic  placer  mining 
ground,  and  to  furnish  power  for  quartz  and  other  mines  along 
the  line  of  diversion,  and  for  all  purposes  incident  thereto. 

That  the  means  by  which  the  undersigned  intend  to  divert  said 
water  is  by  a  ditch  and  Hume,  12  feet  wide  at  the  top,  6  feet  wide 
at  the  bottom,  and  5  feet  deep,  and  when  necessary  or  convenient, 
by  means  of  pipes  or  flumes  of  carrying  capacity  equal  to  the 
quantity  of  water  hereby  appropriated. 

NOTE. — Post  this  notice  in  a  conspicuous  place  at  tlie  point  of 
diversion. 

Commence  construction  of  work  within  sixty  days. 

Record  notice  with  county  recorder. 

Consult  a  lawyer  who  knows  how  to  do  things. 


No.  394. — Application  to  United  States  Surveyor  General  for 
Survey  of  Mining  Claim — Form  C. 

To  H.  W.,  U.  S.  Surveyor  General  for    California: 

Sir :  In  compliance  with  the  provisions  of  the  Revised  Statutes 
of  the  United  States,  Chapter  VI,  Title  XXXII,  and  instructions 
issued  thereunder,  I  herewith  make  application  for  an  official 
survey  of  the  mining  claim  known  as  the  Slickens  Mine,  claimed 
by  me,  located  in  Long  Bridge  Mining  District,  in  the  county  of 
Sierra,  township  No.  p,  range  No.  27  east.  Mount  Diablo  base 
and  meridian,  in  the  state  of  California,  mentioned  and  described 
in  the  annexed  record  of  location;  and  I  request  that  you  will 
send  to  my  address  an  estimate  of  the  amount  to  be  deposited  for 
the  work  to  be  done  in  your  office ;  and  after  such  deposit  shall 
have  been  made,  you  will  cause  the  said  mining  claim  to  be  sur- 
veyed by  /.  /.,  U.  S.  Deputy  Mineral  Surveyor,  and  will  make 
a  plat  thereof,  indorsed  with  your  approval,  designating  the  num- 
ber and  description  of  the  location,  and  the  value  of  the  labor  and 
improvements  made  by  the  locator  or  his  grantees  on  said  mining 
claim ;  and  that  you  will  transmit  duplicate  copies  of  said  plat 
to  applicant,  with  a  certified  copy  of  the  field-notes  of  survey  of 
said  mining  claim. 

The  expenses  of  office  work  are  herewith  tendered,  and  re- 
quest that  prompt  action  be  taken  therein. 

NOTE. — If  the  applicant  is  not  in  actual  possession  of  the  ground, 
an  affidavit  stating  how  he  was  dispossessed,  when  he  was  last  in  pos- 
session and  what  adverse  claims  there  are,  should  be  filed.  This  af- 
fidavit should  state  all  the  material  facts  and  circumstances. 


Mining.  281 

The  pnrveywT  geTK»ral  Trill  furnish  the  applicant  with  an  estimate  of 
the  expenses  for  the  office  work,  covering  the  items  set  forth  in  Form 
394,  and  the  required  deposit  having  been  made,  will  direct  a  United 
Statea  deputy  mineral  surveyor  to  make  the  survey. 


No.   395. — Estimate  of  United  States   Surveyor   General  for 
Office  Work  for  Mining  Claim — Form  D. 

U.  S.    Surveyor  General's  Office, 
San  Francisco,  May  20,  1905. 
To  H.  H.,  Dcnvninnlle,  Sierra  County,  California: 

I  have  received  your  application,  dated  May  ij,  190^,  made 
under  the  provisions  of  Chapter  VI,  Revised  Statutes  of  the 
United  States,  for  a  survey  of  the  mining  claim  known  as  the 
Slickens  Mine,  claimed  by  you,  located  in  Long  Bridge  Mining 
District,  in  the  county  of  Sierra,  township  No.  9,  range  No.  2j 
east.  Mount  Diablo  base  and  meridian,  in  the  state  of  California; 
also  for  an  estimate  of  the  expenses  of  the  office  work  required  to 
be  done  in  this  office. 

In  reply,  I  herewith  furnish  an  estimate  of  the  amount  to  be 
paid  for  such  office  work,  viz. : 

Stationery    $5  00 

Examination  of  the  original  field-notes 10  00 

Protraction  of  the  original  plat 10  oq 

Making  duplicate  and  triplicate  plats  for  claimant 30  00 

Transcription  of  the  origi^tal  field-notes  for  claimant 20  00 

Preparing  diagrams  for  the  general  and  local  land  offices.  .   20  00 

Total $95  00 

The  said  amount  must  be  deposited  with  the  U.  S.  Assistant 
Treasurer  in  S:in  Francisco,  and  his  certificate,  in  triplicate,  taken 
therefor,  and  sent  to  this  office ;  one  to  be  transmitted  to  the  Com- 
missioner of  the  General  Land  Office,  and  one  to  the  Treasurer 
of  the  United  States,  and  the  other  to  be  forwarded  to  you. 

Upon  the  filing  of  said  certificate,  in  duplicate,  in  this  office,  I 
will  at  once  authorize  the  sur\^ey  of  said  mining  claim  by  a  United 
States  Deputy  Mineral  Survevor. 

After  the  survey  and  office  work  have  been  completed.  I  will 
transmit  to  your  address  two  certified  plats  of  said  mining  claim, 
and  a  certified  transcript  of  the  field-notes  for  your  use. 


282  New  Book  of  Forms. 


No.  396. — Reply  to  Applicant. 

U.  S.  Surveyor  General's  Office, 
San  Francisco,  May  15,  190^ 
To  7.   /.,  Esq.,   U.   S.   Deputy  Mineral   Survoyer,  DownievUle, 
Sierra  County. 

Sir:  Having  received  an  application  from  H.  H.,  under  the 
provisions  of  an  Act  of  Congress,  approved  May  10,  1872,  en- 
titled "An  Act  to  promote  the  development  of  the  mining  re- 
sources of  the  United  States,"  for  a  survey  of  the  SUckens  Mining 
Claim,  known  as  the  SUckens  Mine,  claimed  by  him  in  the  Sierra 
Mining  District,  county  of  Sierra,  township  No.  p  north,  range 
No.  7  east.  Mount  Diablo  base  and  meridian,  in  the  state  of  Cali- 
fornia, I  hereby  deputize  and  appoint  you  to  execute  the  said  sur- 
vey. 

You  will  make  said  survey  so  as  to  define  correctly  the  locus 
of  the  ground  described  in  the  annexed  record  of  location,  and  ac- 
cording to  the  monuments  tlierein  referred  to. 

You  will  make  your  survey  in  strict  conformity  to  the  law  and 
special  instructions  to  deputy  mineral  surveyors  from  this  office. 

You  will  make  full  report  on  all  matters  connected  therewith, 
the  value  of  the  improvements,  work  and  labor  done  on  said  claim, 
in  the  currency  of  the  United  States,  the  character  of  the  vein  ex- 
posed, and  its  connections  with  some  established  monuments  of 
public  stirveys. 

You  will  transmit  to  this  office,  without  unnecessary  delay, 
your  field-notes  of  survey,  your  final  oath,  the  preliminary  and 
final  oaths  of  your  assistants,  your  report,  a  diagram  of  said  mine, 
and  the  affidavits  of  two  disinterested  witnesses,  that  to  the  best 
of  their  knowledge  and  belief,  from  their  acquaintance  with  said 
mine,  the  value  of  the  labor  and  improvements  thereon  is  not  less 
than  five  hundred  dollars. 

The  United  States  will  not  be  responsible  for  the  payment  of 
your  services ;  you  will  therefore  make  satisfactory  arrangements 
with  the  claimants  before  proceeding  with  your  survey. 

NOTE. — It  is  sometimes  necessary  to  use  the  following: 

No.  397. — Certificate  of  Identity  of  Claim, 

Territory  of  Utah, 
County  of  Salt  Lake, — ss. 

7.  B.  and  7.  S.,  of  lawful  age,  each  for  himself,  and  not  one  for 
the  other,  being  first  duly  sworn  according  to  law,  deposes  and 
says  that  he  is  a  citizen  of  the  United  States ;  that  he  is  well  ac- 
quainted with  the  Slum  Mining  Claim,  situated  in  Slum  Gulch 


Mining.  283 

Mining  District,  county  and  territory  aforesaid,  for  which  B.  Y ., 
Jr.,  made  application  for  patent,  under  the  provisions  of  an  act  of 
Cong-rcss,  approved  May  JO,  /90J;  that  he  is  not  interested  in 
the  aforesaid  mining  claim,  either  directly  or  indirectly ;  that  he 
was  present  on  the  first  day  of  April,  1905,  on  the  ground  of  said 
mining  claim ;  and  that  the  survey  of  said  mining  claim,  made  on 
that  date,  by  /.  /.,  surveyor,  embraces  the  identical  ground  orig- 
inally claimed  by  its  locators;  and,  further,  that  the  initial  point 
of  discovery  of  said  lode,  or  mining  claim,  from  which  said  sur- 
vey has  been  made  by  the  said  surveyor,  is  the  same  place  where 
the  notice  of  said  lode,  or  mining  claim,  originally  was  posted. 

(Signed.) 

Subscribed  and  sworn  to  before  me,  this  secoivd  day  of  May, 
ipoj,  and  I  hereby  certify  that  I  consider  the  above  deponents 
credible  and  reliable  witnesses. 

NOTE.— After  the  survey  has  been  duly  made,  the  field-notes  of  sur- 
vey and  plat  thereof  returned,  and  the  whole  approved  by  the  surveyor 
general,  the  party  may  then  make  application  to  the  register  and  re- 
ceiver for  the  land  district  within  which  the  claim  is  located,  for  a 
patent,  using: 

No.   398. — Application  for  Patent. 

State  of  California, 
County  of  Butte, — ss. 

APPLICATION  FOR  PATENT  FOR  THE  SLIME  MIN- 
ING DISTRICT. 

To  the  Register  and  Receiver  of  the  United  States  Land  Office,  at 
San  Francisco,  State  of  California: 
W.  H.  P.,  being  duly  sworn  according  to  law,  deposes  and 
says,  that  in  virtue  of  a  compliance  with  the  mining  rules,  regu- 
lations and  aistoms  by  himself,  the  said  P.,  and  his  co-claimants, 
who  are  applicants  for  patent  herein,  has  become  the  owner  of, 
and  is  in  the  actual,  quiet  and  undisturbed  possession  of  three 
thousand  linear  feet  of  the  vein,  lode,  or  mineral  deposit,  together 
with  surface  ground  three  hundred  feet  in  width,  for  the  con- 
venient working  thereof,  as  allowed  by  local  rules  and  customs 
of  miners,  said  mineral  claim,  vein,  lode  or  deposit  and  surface 
ground  being  situated  in  the  Red  Dog  Mining  District,  county  of 
Butte,  and  state  oi  California,  and  being  more  particularly  set 
forth  and  described  in  the  official  field-notes  of  survey  thereof, 
hereto  attached,  dated  the  first  day  of  April,  IQO^,  and  in  the 
official  plat  of  said  survey,  now  posted  conspicuously  upon  said 
mining  claim  or  premises,  a  copy  of  which  is  filed  herewith.  De- 
ponent further  states  that  the  facts  relative  to  the  right  of  pos- 


284  New  Book  of  Forms. 

session  of  himself  (and  his  said  co-claimants  hereinbefore 
named)  to  said  mining  claim,  vein,  lode,  or  deposit  and  surface 
ground,  so  surveyed  and  platted,  are  substantially  as  follows,  to 
wit:  [Give  full  description  of  claim,  from  whom,  and  the  manner 
in  which  title  was  derived.']  Which  will  more  fully  appear  by 
reference  to  the  copy  of  the  original  record  of  location  heretofore 
furnished,  and  the  abstract  of  title  hereto  attached  and  made  a 
part  of  this  affidavit ;  the  value  of  the  labor  done,  and  the  improve- 
ments made  upon  said  claim  by  himself  and  his  grantors  being 
equal  to  the  sum  of  f.ve  hundred  dollars,  and  said  improvements 
consist  of  [describe  in  detail].  In  consideration  of  which  facts, 
and  in  conformity  with  the  provisions  of  Chapter  VI,  of  Title 
XXXII,  of  the  Revised  Statutes  of  the  United  States,  applica- 
tion is  hereby  made  for  and  in  behalf  of  said  W.  H.  P.  for  a  pat- 
ent from  the'  government  of  the  United  States,  for  the  said  Slime 
Mining  Claim,  vein,  lode,  deposit,  and  the  surface  ground  so  offi- 
cially surveyed  and  platted. 

Subscribed  and  sworn  to  before  me,  this  Urst  day  of  November, 
ipoj,  and  I  hereby  certify  that  I  consider  the  above  deponent  a 
credible  and  reliable  person,  and  that  the  foregoing  affidavit,  to 
which  was  attached  the  field-notes  of  survey  of  the  Slime  mining 
claim,  was  read  and  examined  by  him  before  his  signature  was 
affixed  thereto  and  the  oath  made  by  him. 

[The  above  is  slightly  changed  in  applying  to  placer  mines.] 

NOTE. — Under  the  provisions  of  section  1  of  the  act  of  Congress  of 
January  22,  1880,  this  application  may  be  made  by  an  agent,  when  the 
claimant  for  patent  is  not  a  resident  of  or  within  the  land  district. 

The  applicant  should  immediately  cause  to  be  posted,  in  a  eonspieu- 
oas  place  upon  the  mining  claim,  the  following  notice: 


No.  399. — Notice  of  Application  for  a  United  States  Patent — 

Form  H. 

Notice  is  hereby  given  that  in  pursuance  of  the  act  of  Congress 
approved  May  10,  ipo^,  "To  promote  the  development  of  the  min- 
ing resources  of  the  United  States,"  S.  L.  and  G.  M.,  claiming 
three  thousand  linear  feet  of  the  vein,  lode,  or  mineral  deposit, 
bearing  gold,  with  surface  ground,  three  hundred  feet  in  width, 
lying,  being,  and  situate  within  the  Chuck  Mining  District,  county 
of  Lane,  and  state  of  Oregon,  has  made  application  to  the  United 
States  for  a  patent  for  the  said  mining  claim,  which  is  more  fully 
described  as  to  metes  and  bounds  by  the  official  plat,  herewith 
posted,  and  by  the  field-notes,  of  survey  thereof,  now  filed  in  the 
office  of  the  register  of  the  district  of  lands  subject  to  sale  at 
Salem,  which  field-notes  of  survey  described  the  boundaries  and 
extent  of  said  claim  on  the  surface,  with  magnetic  variations  at 


Mining.  285 

17°  east,  as  follows,  to  wit:  [Description.]  The  said  mining 
claim  being  of  record  in  the  office  of  the  recorder  of  Tar  Camp, 
at  Millcrville,  in  the  county  and  state  aforesaid,  the  presumed  gen- 
eral course  or  direction  of  the  said  vein,  lode,  or  mineral  deposit 
being  shown  upon  the  plat  posted  herewith,  as  near  as  can  be 
determined  from  present  developments,  this  claim  being  for  three 
thousand  linear  feet  thereof,  together  with  the  surface  ground 
shown  from  the  official  plat  posted  herewith,  the  said  vein,  lode, 
and  mining  premises  hereby  sought  to  be  patented  being  bounded 
as  follows,  to  wit:  [Description.]  The  said  claim  being  desig- 
nated as  lot  number  seven  in  the  official  plat  posted  herewith. 

Any  and  all  persons  claiming  adversely  the  mining  ground, 
vein,  lode,  premises,  or  any  portion  thereof,  so  described,  sur- 
veyed, platted,  and  applied  for,  are  hereby  notified  that  unless 
their  adverse  claims  are  duly  filed,  as  according  to  law^  and  the 
regulations  thereunder,  within  sixty  days  from  the  date  hereof, 
with  the  Register  of  the  United  States  Land  Office,  at  Salem,  in 
the  state  of  Oregon,  they  will  be  baned,  m  virtue  of  the  pro- 
visions of  said  statute. 

Dated  on  the  ground,  this  third  day  of  May,  1905. 

NOTE. — At  the  time  of  filing  the  application  for  patent,  the  claim- 
ant shonld  also  introduce  the  proof  indicated  in  the  forms.  Also,  an 
abstT^ct  of  title,  which  must  show  the  possessory  title  to  be  in  the  ap- 
plicant. This  abstract  should  contain  memoranda  of  all  the  deeds  and 
eiieumbrances  appearing  of  record  in  the  office  of  the  recorder  of  the 
mining  district  or  countv,  as  the  case  may  be,  and  must  be  certified  by 
such  recorder  to  be  a  correct  abstract.  Where  there  have  been  no 
t'-ansfers,  a  certificate  tc  that  effect  by  the  recorder,  attached  to  the 
certified  copy  of  the  certificate  of  location,  will  be  required. 

No.  400 — Proof  of  Posting  Notice  and  Diagram  on  the  Claim 

— Form  L 

State  of  California, 
County  of  Butte, — ss. 

/.  D.  and  /.  W.,  each  for  himself,  and  not  one  for  the  other. 
being  first  duly  sworn  according  to  law,  deposes  and  savs,  that 
he  is  a  citizen  of  the  United  States,  over  the  age  of  twentv-one 
years,  and  was  present  on  the  third  day  of  May,  iQOf;,  when  a 
plat  representing  the  claim,  and  certified  to  as  correct  bv  the 
United  States  Surveyor  General  of  California,  snd  designated  by 
him  as  Lot  No.  0,  together  with  a  notice  of  the  intention  of  /.  P. 
and  7.  W.  to  apply  for  a  patent  for  the  mining  claim  and  prem- 
ises so  platted,  was  posted  in  a  conspicuous  place  upon  said 
mining  claim,  to  wit,  upon  an  oak  stump,  where  the  same  could 
be  easily  seen  and  examined :  the  notice  so  conspicucmsly  posted 
vpon  said  claim  being  in  words  and  figures  as  follows,  to  wit: 


286  New  Book  of  Forms. 

Notice  of  the  application  of  /.  D.  and  /.  IV.  for  a  United  States 
patent. 

"Notice  is  hereby  given  that  in  pursuance  of  Chapter  VI,  of 
Title  XXXII.  of  the  Revised  Statutes  of  the  United  States,"  /. 
D.  and  /.  IV.,  claiming  three  thousand  linear  feet  of  the  vein, 
lode,  or  mineral  deposit,  bearing  gold,  with  surface  ground,  three 
thousand  feet  in  width,  lying  and  being  situated  within  the  Jones 
^Mining  District,  county  of  Butte,  and  state  of  California,  have 
made  application  to  the  United  States  for  a  patent  for  the  said 
mining  claim,  which  is  more  fully  described  as  to  metes  and 
bounds  by  the  official  plat  herewith  posted,  and  by  the  field-notes 
of  survey  thereof,  now  filed  in  the  office  of  the  register  of  the  dis- 
trict of  lands  subject  to  sale  at  Sacramento  City,  California,  which 
field-notes  of  survey  describe  the  boundaries  and  extent  of  said 
claim  on  the  surface,  with  magnetic  variation  at  seventeen  degrees 
east.      [Description.] 

The  said  mining  claim  being  of  record  in  the  office  of  the  Re- 
corder of  Mines,  at  Chico,  in  the  county  and  state  aforesaid,  the 
presumed  general  course  or  direction  of  the  said  vein,  lode,  or 
mineral  deposit  being  shown  upon  the  plat  posted  herewith,  as 
near  as  can  be  determined  upon  present  developments,  this  claim 
being  for  three  thousand  linear  feet  thereof,  together  with  the  sur- 
face ground  shown  upon  the  official  plat  posted  herewith,  tlie 
said  vein,  lode,  and  mining  premises  hereby  sought  to  be  pat- 
ented being  bounded  as  follows,  to  wit:   [Description.] 

The  said  claim  being  designated  as  Lot  No.  27,  in  the  official 
plat  posted  herewith. 

Any  and  all  persons  claiming  adversely  the  mining  ground, 
vein,  lode,  premises,  or  any  portion  thereof,  so  described,  sur- 
veyed, platted  and  applied  for,  are  hereby  notified  that  unless  their 
adverse  claims  are  duly  filed  as  according  to  law  and  the  regu- 
lations thereunder,  within  sixty  days  from  the  date  hereof,  with 
the  Register  of  the  United  States  Land  Office,  at  Sacramento,  in 
the  state  of  California,  they  will  be  barred,  in  virtue  of  the  pro- 
visions of  said  statute. 

Dated  on  the  ground,  this  third  day  of  May,  1905. 

Subscribed  and  sworn  to  before  me  this  third  day  of  May,  1905, 
and  I  hereby  certify  that  I  consider  the  above  deponents  credible 
and  reliable  witnesses,  and  that  the  foregoing  affidavit  and  notice 
were  read  by  each  of  them  before  their  signatures  were  affixed 
thereto  and  the  oath  made  by  them. 

NOTE. — The  notice  to  be  posted  on  the  claim  with  the  plat  is  given 
in  the  above  form. 


Mining.  287 


No.  401. — Affidavit  of  Five  Hundred  Dollars  Improvements 

— Form   K. 

State  of  California, 
County  of  Sierra, — ss. 

H.  S.  and  H.  H.,  of  lawful  ag^,  being  first  duly  sworn  accord- 
ing to  law,  depose  and  say  that  they  are  acquainted  with  the  Slug 
Canyon  Mining  Claim  in  Slope  Mining  District,  county  and  state 
aforesaid,  for  which  they  have  made  application  for  patent  under 
the  provisions  of  Chapter  VI,  of  Title  XXXII,  Revised  Statutes 
of  the  United  States,  and  that  the  labor  done  and  the  improve- 
ments made  thereon  by  the  applicant  and  his  grantors  exceed 
five  hundred  dollars  in  value,  and  said  improvements  consist  of 
a  tunnel  run  in  and  through  the  center  of  said  ground  five  hunr- 
dred  feet  in  length,  costing  over  ten  thousand  dollars. 

No.  402. — Proof  of  Labor — Form  L. 

State  of  California, 
County  of  Sierra, — ss. 

Before  me,  the  subscriber,  personally  appeared  A.  B.,  who,  be- 
ing duly  sworn,  says  that  at  least  one  thousand  dollars'  worth  of 
labor  or  improvements  were  performed  or  made  upon  the  Fast 
Man  Claim,  situated  in  Black  Horse  Mining  District,  Sierra 
county,  state  of  California,  during  the  year  ending  January  j, 
ipof.  Such  expenditure  was  made  by  or  at  the  expense  of  the 
owners  of  said  claim  for  the  purpose  of  holding  said  claim. 


No.  403. — Agreement  of  Publisher — Form  N. 

The  undersigned,  publisher  and  proprietor  of  the  M.  M.,  a 
weekly  newspaper,  published  at  Downiczille,  county  of  Sierra, 
and  state  of  California,  does  hereby  agree  to  publish  a  notice, 
dated  U.  S.  Land  Office,  May  j,  ipoj,  required  bv  the  provisions 
of  Chapter  VI,  of  Title  XXXII,  Revised  Statutes  of  the  United 
States,  the  intention  of  H.  H.,  to  apply  for  a  patent  for  his  claim 
on  the  Oro  Lode,  situated  in  Piety  Hill  Mining  District,  county 
of  Sierra,  state  of  California,  and  to  hold  the  said  H.  alone  re- 
sponsible for  the  amount  due  for  publishing  the  same.  And  it  is 
hereby  expressly  stipulated  and  agreed  that  no  claim  shall  be 
made  against  the  government  of  the  United  States,  or  its  officers 
or  agents,  for  such  publication. 

NOTE. — At  the  samp  timp  may  be  appropriately  filed,  as  the  case 
may  require,  either  of  Forms  0,  P.  Q,  or  R. 


288  New  Book  of  Forms. 

No.  404- — Power  of  Attorney — Form   O. 

Know  aix  Men  by  these  Presents  :  That  we,  H.  B.  and  /.  S., 
do  hereby  constitute  and  appoint  S.  B.  D.  as  our  attorney  in  fact, 
for  us  and  in  our  names  to  make  appHcation  to  the  United  States 
for  the  entry  and  purchase  of  certain  government  lands,  in  Piety 
Hill  Mining  District,  Sierra  county,  state  of  California,  known 
as  the  Oro  Mining  Claim  and  premises,  and  to  have  the  same  sur- 
veyed, and  to  take  any  and  all  steps  that  may  be  necessary  to  pro- 
cure from  the  government  of  the  United  States  a  patent  to  the 
said  lands  and  premises,  granting  the  same  to  us.  And  to  do 
all  other  acts  appertaining  to  the  said  survey  and  entry  aforesaid 
as  we  ourselves  could  do  by  our  own  act  and  in  our  own  proper 
person. 

No.  405. — Proof  of  Ownership  and  Possession  in  Case  of  Loss 
or  Absence  of  Mining  Records — Form  P. 

State  of  California, 
County  of  Sierra, — ss. 

H.  H.  and  H.  P.,  each  for  himself  and  not  one  for  the  other, 
being  first  duly  sworn  according  to  law,  deposes  and  says  that  he 
is  a  citizen  of  the  United  States,  over  the  age  of  twenty-one  years, 
and  a  resident  of  Sierra  county,  state  of  California,  and  has  re- 
sided in  Piety  Hill  Mining  District,  wherein  the  Oro  Mine  is 
situated,  since  the  third  day  of  May,  1^04.  That  since  said  date 
he  has  been  acquainted  with  the  Oro  Mine,  and  with  the  pos- 
sessors and  workers  thereof.  That  said  mine  was  located  and 
has  been  possessed  and  worked  in  accordance  with  the  customs 
and  usages  of  miners  in  said  district,  and  in  conformity  with  the 
rules  and  regulations  governing  the  location,  holding,  and  work- 
ing of  mining  claims,  in  force  and  observed  in  the  state  of  Cali- 
fornia. That  there  are  no  written  records  known  to  deponent 
existing  in  said  mining  district.  That  affiant  is  credibly  informed 
and  believes  that  the  Oro  Mine  was  located  in  the  year  1904,  and 
that  if  any  record  was  made  of  said  location,  and  of  the  names 
of  the  locators,  the  same  has  not  been  in  existence  for  a  long  num- 
ber of  years  past,  and  that  by  reason  thereof  the  names  of  the  lo- 
cators cannot  now  be  ascertained,  and  no  abstract  of  title  from 
locators  to  the  present  owners  can  be  made.  That  the  possession 
of  applicant  and  his  predecessors  in  interest  of  said  Oro  Mine 
has  been  actual,  notorious,  and  continuous,  to  the  positive  knowl- 
edge of  deponent,  since  his  residence  in  said  mining  district,  and 
tliat  such  possession  has  been  perfected  and  maintained  in  con- 
formity with  mining  usages  and  customs,  and  had  been  acqui- 
esced in  and  respected  by  the  miners  of  said  district.  That  ap- 
plicant's right  to  said  Oro  Mine  is  not  in  litigation  within  the 


Mining.  289 

knowlcdg-e  of  affiant,  and  that  no  action  or  actions  have  been  com- 
menced affecting  the  right  to  said  mine  since  his  acquaintance 
therewith  (and  that  the  time  for  the  commencement  thereof,  as 
required  to  be  instituted  under  the  provisions  of  the  statute  of 
Hmitations  of  the  state  of  California,  has  long  since  elapsed). 
That  applicant  and  his  predecessors  in  interest  have  expended  in 
the  improvement,  development,  and  working  of  said  mine  a  sum 
of  money  exceeding  one  hundred  dollars,  as  follows,  to  wit:  ten 
thousand  dollars. 

Subscribed  and  sworn  to  before  me,  this  eigfUh  day  of  May, 
ipo^,  and  I  hereby  certify  that  the  aforenamed  H.  P.,  H.  H.,  S. 
D.,  and  S.  B.  D.  are  credible  and  respectable  persons,  to  whose 
affidavits  full  faith  and  credit  should  be  given. 

[Seal.] 

NOTE. — This  should  be  sworn  to  by  at  least  two  respectable  persons, 
and  by  the  applicant  for  patent. 

No.   406. — Nonmineral   Affidavit — Form    Q    (to   be    Used   in 
Case  of  a  Millsite) . 

State  of  California, 
County  of  Sierra, — ss. 

A.  A.  S.  and  G.  C.  M.,  of  said  county  and  state,  being  first  duly 
sworn,  each  for  himself  deposes  and  says,  that  he  is  well  ac- 
quainted with  the  Glide  Claim,  situated  in  Slum  Mining  District, 
county  of  Sierra,  and  state  of  California,  claimed  by  W.  W.  S., 
applicant  for  United  States  patent  therefor ;  that  he  is  well  ac- 
quainted with  the  character  of  said  described  land,  and  with  each 
and  every  legal  subdivision  thereof,  having  frequently  passed  over 
the  same ;  tliat  his  knowledge  of  said  land  is  such  as  to  enable  him 
to  testify  understandingly  with  regard  thereto;  that  there  is  not 
to  his  knowledge,  within  the  limits  thereof,  any  vien  or  lode  of 
quartz  or  other  rock  in  place,  bearing  gold,  silver,  cinnabar,  lead, 
tin.  Off  copper,  or  any  deposit  of  coal ;  that  there  is  not  within 
the  limits  of  such  land,  in  his  knowledge,  any  placer,  cement, 
gravel,  or  other  valuable  mineral  deposit ;  that  no  portion  of  said 
land  is  claimed  for  mining  purposes  under  the  local  customs  or 
rules  of  miners,  or  otherwise ;  that  no  portion  of  said  land  is 
worked  for  minerals  during  any  part  of  the  year  by  any  person 
or  persons ;  that  said  land  is  essentially  nonmineral  land,  and  that 
he  has  no  interest  whatever  in  said  land. 

Subscribed  and  sworn  to  before  me,  this  third  day  of  May, 
190^,  and  I  hereby  certify  that  the  foregoing  affidavit  was  read 
to  each  of  the  said  subscribers  previous  to  his  name  being  sub- 
scribed thereto;  and  that  deponent  is  a  respectable  person,  to 
whose   affidavit  full  faith  and  credit  should  be  giveru 

[Seal.] 

New  Forms- -19 


290  New  Book  op  Forms. 

No.  407. — Proof  that  No    Known  Veins  Exist  in  a  Placer 
Mining   Claim — Form  R. 

State  of  California, 
County  of  Nevada, — ss. 

A.  A.  J.  and  B.  A.,  of  the  said  county  and  state,  being  first 
duly  sworn,  each  for  himself,  deposes  and  says,  that  he  is  well 
acquainted  with  the  Slips  Placer  Mining  Claim,  embracing  one 
thousand  acres,  situated  in  the  Flow  Mining  District,  in  the  county 
of  Nevada,  and  state  of  California,  owned  and  worked  by  F.  F. 
H.,  applicant  for  United  States  patent;  that  for  many  years  he 
has  resided  near,  and  often  been  upon  the  said  mining  premises, 
and  that  no  knov/n  vein  or  veins  of  quartz,  or  other  rock  in  place 
bearing  gold,  silver,  cinnabar,  lead,  tin,  or  copper,  exist  on  said 
mining  claim,  or  on  any  part  thereof,  so  far  as  he  knows,  and  he 
verily  believes  that  none  exist  thereon. 

Subscribed  and  sworn  to  before  me,  this  tenth  day  of  January, 
ipoj. 

NOTE. — In  ease  any  known  mines  exist  within  the  exterior  boun- 
daries of  the  placer  claim,  the  names  of  such  known  veins  should  be 
given,  to  be  sworn  to  by  the  applicant  and  one  or  more  other  persons. 
Directly  after  the  filing  of  the  application  for  patent,  with  accompany- 
ing proof,  the  register  of  the  land  office  will  designate  a  newspaper,  a3 
published  nearest  the  land  sought  to  be  patented,  to  publish  the  follow- 
ing notice  for  sixty  days: 

No.  408. — Application  for  a  Patent — Form  S. 

U.  S.  Land  Office,  May  j,  190^. 
Notice  is  hereby  given  that  H.  H.,  whose  postoffice  address  is 
Dozvitieville,  Sierra  county,  California,  has  this  day  filed  his  ap- 
plication for  a  patent  for  nine  thousand  linear  feet  of  the  Oro 
Mine  or  vein  bearing,  with  surface  ground  three  hundred  feet 
in  width,  situated  in  Piety  Hill  Mining  District,  county  of  Sierra, 
and  state  of  California,  and  designated  by  the  field-notes  and 
official  plat  on  file  in  this  office  as  lot  number  10,  in  township  p, 
range  7  east,  of  Mt.  Diablo  base  and  meridian,  said  lot  number 
10  being  as  follows,  to  wit:  [Description.] 

NOTE. — At  the  expiration  of  the  period  of  legal  publication  of  notice 
of  application,  the  claimant  should  file  with  the  land  officers  the  proofs 
indicated  by  Forms  T,  U,  V. 

No.  409. — Proof  of  Publication — Form  T, 

State  of  California, 
County  of  Sierra, — ss. 

V.  D.,  being  duly  sworn,  deposes  and  says,  that  he  is  the  />ro- 
prietor  of  the  M.  M.,  a  newspaper  published  in  Sierra  county,  in 
die  state  of  California. 


Mining. 


291 


That  the  notice  of  which  a  copy  is  hereto  nttachcd,  was  first 
ptiblished  in  said  newspaper  in  its  issue  dated  the  ninth  day  of 
January,  ipo^,  and  was  piibHshcd  in  each  issue  of  said  newspaper 
for  sixty  days  thereafter  the  full  period  of  sixty  days,  the  last 
publication  thereof  being  in  the  issue  dated  the  nineteenth  day  of 
August,  IQ05. 

No.  410. — Proof  that  Plat  and  Notice  Remained  Posted  on 
Claim  During  Time  of  Publication — Form  U. 

State  of  California, 
County  of  Sierra, — ss. 

H.  H.,  being  first  duly  sworn  according  to  law,  deposes  and 
says  that  he  is  claimant  (and  co-owner  with),  H-  S..  in  the  Oro 
Mining  Claim,  Piety  Hill  Mining  District,  Sierra  county,  Cali- 
fornia,  the  official  plat  of  which  premises,  together  with  the  notice 
of  intention  to  apply  for  a  patent  therefor,  was  posted  thereon  on 
the  ninth  day  of  January,  1905,  as  fully  set  forth  and  described 
in  the  affidavit  of  G.  B.,  and  S.  W.,  dated  the  ninth  day  of  Janu- 
ary, 1905,  which  affidavit  was  duly  filed  in  the  office  of  the  Regis- 
ter at  Sacramento,  in  this  state;  and  that  the  plat  and  notice  so 
mentioned  and  described  remained  continuously  and  conspicu- 
ously posted  upon  said  mining  claim  from  the  ninth  day  of  Janu- 
ary, ipoj,  until  and  including  the  nineteenth  day  of  August,  IQ05, 
including  the  sixty  days  period  during  which  notice  of  said  pub- 
lication for  patent  was  published  in  the  newspaper. 

NOTE. — A  publication  in  a  weekly  newspaper  for  nine  weeks  is  not 
a  publication  for  sixty  clays.  There  must  be  ten  insertions:  Sickles  on 
Mining  Laws  and  Decisions,  321. 

It  must  be  published  in  the  newspaper  nearest  the  claim:  Id.  68. 

It  must  be  made  with  the  knowledge  of  the  register  of  the  head  of- 
fice: Id.  71. 

One  notice  may  include  several  tracts:  Id,  342. 

Subscribed  and  sworn  to  before  me  this  twentieth  day  of  Aug- 
ust, 1905,  and  I  hereby  certify  that  the  foregoing  affidavit  was 
read  to  the  said  H.  H.  previous  to  his  name  being  subscribed 
thereto;  and  that  deponent  is  a  respectable  person,  to  whose  affi- 
davit full  faith  and  credit  should  be  given. 

[Seal.] 

No.  411. — Statement  of  Fees  and  Charges — Form  V. 

State  of  California, 
County  of  Sierra, — ss. 

H.  H.,  being  first  duly  sworn  according  to  law,  deposes  and 
says,  that  he  is  tlie  applicant  for  patent  for  the  Oro  lode  in  Piety 


292  New  Book  of  Forms. 

Hill  Mining  District,  countv  of  Sierra,  state  of  California,  under 
the  provisions  of  Chapter  VI,  of  Title  XXXII,  of  the  Revised 
Statutes  of  the  United  States,  and  that  in  the  prosecution  of  said 
application  he  has  paid  out  the  following  amounts,  viz. :  to  the 
credit  of  the  surveyor  general's  office,  one  hundred  dollars ;  for 
surveying,  ten  dollars ;  for  filing  in  the  local  land  office,  fifty  dol- 
lars ;  for  publication  of  notice,  fifty  dollars ;  and  for  the  land  em- 
braced in  his  claim,  one  thoiisatid  dollars. 

(Subscribed  and  sworn  to.) 

[Seal] 

NOTE. — In  due  time,  if  no  adverse  claim  has  been  filed,  or  if  filed, 
but  no  suit  has  been  commenced  thereon  within  the  period  prescribed 
by  law,  the  claimant  may  make  application  to  purchase.  The  register 
should  thereupon  certify  to  the  fact  of  the  posting  of  notice  in  the  land 
oflice  of  the  application  for  patent;  and  upon  payment  to  the  receiver 
of  the  purchase  money  should  issue  his  certificate  of  entry. 

No.  412. — Register's  Certificate  of  Posting  Notice  for  Sixty 
Days — Form  W. 

United  States  Land  Office  at 
San  Francisco,  State  of  California,  1905. 
I  hereby  certify  that  the  official  plat  of  the  Gold  lode  desig- 
nated by  the  surveyor  general  as  lot  No.  10,  was  filed  in  this 
office  on  the  twentieth  day  of  May,  1905,  and  that  the  attached 
notice  of  the  intention  of  S.  B.  to  apply  for  a  patent  for  the  min- 
ing claim,  or  premises,  embraced  by  said  plat,  and  described  in 
the  field-notes  of  survey  thereof  filed  in  said  application,  was 
posted  conspicuously  in  this  office  on  the  ninth  day  of  June,  IQ0§, 
and  remained  so  posted  until  the  twentieth  day  of  August,  1905, 
being  the  full  period  of  sixty  consecutive  days  during  the  period 
of  publication  as  required  by  law ;  and  that  said  plat  remained  in 
this  office  during  that  time,  subject  to  examination,  and  that  no 
adverse  claim  thereto  has  been  filed. 

NOTE. — The  notice  posted  in  the  office  should  be  attached  to  this 
certificate;  a  copy  of  the  notice  published  is  the  one  usually  posted  in 
the  register's  office. 

[These  forms,  which  are  designed  particularly  for  lode,  or  quartz, 
claims,  may  also,  with  slight  modification,  be  used  for  plaeer  claims.] 

No.  413. — Certificate  that  No  Suit  is  Pending — Form  W. 

W. 

State  of  California, 
County  of  Sierra, — ss. 

I,  H.  S.,  clerk  of  the  superior  court,  in  and  for  Sierra  county, 
California,  do  hereby  certify  that  there  is  now  no  suit  or  action  of 
any  character  pending  in  said  court,  involving  the  right  of  posses- 


Mining. 


293 


sion  to  any  portion  of  the  Oro  mining  claim,  and  that  there  has 
been  no  htigation  before  said  court  affecting  the  title  to  said  claim, 
or  any  part  thereof,  for  twenty  years  last  past,  or  within  the  period 
prescribed  by  the  statute  of  limitations,  to  wit,  Hve  years,  other 
than  what  has  been  finally  decided  in  favor  of  H.  H. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed 
the  seal  of  said  court,  at  my  office,  in  Downieville,  this  twentieth 
day  of  June,  IQ0§. 


No.  414. — Protest  and  Adverse  Claim — Form  X, 

United  States  Land  Office, 

State  of  California, — ss. 

In  the  matter  of  the  application  of  H.  H.,  for  a  United  States 
patent  for  the  Oro  lode,  or  mining  claim,  and  the  land  and  prem- 
ises appertaining  to  said  mine,  situated  in  the  Piety  Hill  Mining 
District,  in  Sierra  county,  state  of  California. 

To  the  Register  and  Receiver  of  the  Uitited  States  Land  Office, 
at  San  Francisco,  and  to  the  above-named  applicant  for  patent  for 
the  Oro  lode : 

You  are  hereby  notified  that  A.  C,  of  the  city  of  Stockton, 
county  of  San  Joaquin,  and  state  of  California,  and  a  citizen  of  the 
United  States  of  America,  is  the  lawful  owner  and  entitled  to  the 
possession  of  three  thousand  feet  of  the  said  Oro  lode,  or  mine, 
described  in  said  application,  as  shown  by  the  diagram  posted 
on  said  claim,  and  a  copy  thereof  filed  in  the  land  office  with  said 
application,  and  as  such  owner  this  contestant,  the  said  A.  C, 
does  protest  against  the  issuing  of  a  patent  thereon  to  said  appli- 
cant, and  does  dispute  and  contest  the  right  of  said  applicant 
therefor. 

And  this  contestant  does  present  the  nature  of  his  adverse 
claim,  and  does  fully  set  forth  the  same  in  the  affidavit  hereto 
attached,  marked  Exhibit  A,  and  the  further  exhibits  thereto  at- 
tached and  made  part  of  said  affidavit. 

The  said  A.  C.  therefore  respectfully  asks  the  said  Register  and 
Receiver  that  all  further  proceedings  in  the  matter  be  stayed  until 
a  final  settlement  and  adjudication  of  the  rights  of  this  contestant 
can  be  had  in  a  court  of  competent  jurisdiction. 

(Place  and  date.) 

EXHIBIT  A. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

A.  C,  being  first  duly  sworn,  deposes  and  says,  that  he  is  a 
citizen  of  the  United  States,  born  in  the  state  of  California,  and 


294  Nitw  Book  of  Forms. 

is  now  residing  in  Stockton;  that  he  is  the  contestant  and  pro- 
testant  named  in,  and  who  subscribed  the  notice  and  protest  hereto 
annexed.  Affiant  further  says  that  he  is  the  owner  by  purchase 
and  in  possession  of  the  (adverse)  lode,  or  vein,  of  quartz  and 
other  rock  in  place,  bearing  gold  and  othfer  metals.  That  the  said 
lode  is  situated  in  the  Piety  HiH  Mining  District,  Sierra  county, 
state  of  Calif o-rnia. 

[The  history  of  the  lode  should  be  given  in  full ;  for  instance, 
as  follows :] 

This  aifi-ant  further  says,  that  on  the  day  of  location  the  prem- 
ises hereinafter  described  were  mineral  lands  of  the  public  domain, 
and  entirely  vacant  and  unoccupied,  and  were  not  owned,  held, 
or  claimed  by  any  person  or  persons  as  mining  ground  or  other- 
wise, and  that  while  the  same  were  so  vacant  and  unoccupied  and 
unclaimed,  to  wit;  on  the  first  day  of  January.  igo§  [name  lo- 
cators], each  and  all  of  them  being  citizens  of  the  United  States, 
entered  upon  and  explored  the  premises,  discovered  and  located 
the  said  Oro  lode,  and  occupied  the  same  as  mining  claims.  That 
the  said  premises  so  located  and  appropriated  consist  of  fifteen 
hundred  feet  in  a  northerly  direction,  and  Hfteen  hundred  feet  in 
a  southerly  direction,  as  will  fully  appear  by  reference  to  the  no- 
tice of  location,  a  duly  certified  copy  whereof  is  hereunto  annexed, 
marked  Exhibit  B,  and  hereby  made  a  part  of  this  affidavit.  That 
the  locators,  after  the  discovery  of  said  Oro  lode,  drove  a  stake 
on  said  lode  on  the  discovery  claim,  erected  a  monument  of  stone 
around  said  stake,  and  placed  thereon  a  written  notice  of  location 
describing  the  claim  so  located  and  appropriated,  giving  the  names 
of  the  locators  and  quantity  taken  by  each,  and  after  doing  all 
the  acts  and  performing  all  the  labor  required  by  the  lazvs  and 
regulations  of  said  Piety  Hill  Mining  District,  and  state  of  Cali- 
fornia, the  locators  of  said  lode  caused  said  notice  to  be  tiled  and 
recorded  in  the  proper  books  of  record  in  the  Recorder's  Office 
in  said  district,  on  the  ninth  day  of  January,  ipo^. 

Affiant  further  says,  that  the  said  locators  remained  continu- 
ously in  possession  of  said  lode,  ivorking  upon  the  same,  and 
nnthin  twelve  months  from  the  date  of  said  location  had  done  and 
performed  zvork  and  labor  on  said  location  in  mining  thereon  and 
developing  the  same,  more  than  three  hundred  and  sixty-five  days' 
zvork,  and  expended  on  said  location  more  than  nine  hundred 
dollars,  and  by  said  labor  and  money  expended  upon  the  said  min- 
ing location  and  claim,  had  developed  the  same,  and  extracted 
therefrom  more  than  one  thousand  tons  of  ore. 

And  affiant  further  says,  that  said  locators,  in  all  respects,  com- 
plied zvith  every  custom,  rule,  regulation,  and  requirement  of 
the  mining  laws,  and  every  rule  and  custom  established  and  in 
force  in  said  Piety  Hill  Mining  District,  and  thereby  became  and 


Mining.  295 

were  ozimers  (except  as  against  the  paramount  title  of  the  United 
States)  and  the  rightful  possessors  of  said  mining  claims  and 
premises. 

.hid  this  affiant  further  says,  tliai  said  locators  proved  and  es- 
tablished, to  the  satisfaction  of  the  Recorder  of  said  mining  dis- 
trict, that  they  had  fully  complied  with  all  the  rules,  customs,  reg- 
ulations, and  requirements  of  the  laws  of  said  district,  and  there- 
upon the  said  Recorder  issued  to  the  locators  of  said  lode  certifi- 
cates confirming  their  titles  and  rights  to  said  premises. 

Tlwt  the  said  lode  zvas  located  and  zvorked  by  the  said  locators 
as  tenants  in  common,  and  they  so  continued  in  the  rightful  and 
undisputed  possession  thereof  from  the  time  of  said  location  until 
on  or  about  the  tenth  day  of  June,  IQO^,  at  zvhich  time  the  said 
locators  and  oztmers  of  said  lode  formed  and  organized  under  the 
lazvs  of  the  state  of  California,  and  incorporated  under  the  name 
of  the  "Oro  Gold  Mining  Company" ;  and  on  the  tenth  day  of 
June,  1905,  each  of  tlie  locators  of  said  lode  conveyed  said  lode, 
and  each  of  their  rights,  titles,  and  interests  in  and  to  said  lode, 
*  to  said  "Oro  Gold  Mining  Company." 

On  the  said  tenth  day  of  June,  1905,  the  said  company  entered 
into  and  upon  said  lode,  and  zva^  seised  and  possessed  thereof,  and 
every  part  and  parcel  of  the  same,  and  occupied  and  mined  thereon 
until  the  thirtieth  day  of  August,  1905,  at  zvhich  time  the  said 
mining  company  sold  and  conveyed  the  same  to  this  afiiant,  zvhich 
said  sez-eral  transfers  and  conveyances  zvill  fully  appear  by  refer- 
ence to  the  abstract  of  title  and  paper  thereto  attached,  tnarked 
Exhibit  D,  and  made  a  part  of  this  affidavit. 

[In  case  of  individual  transfers.] 

And  this  affiant  further  Says,  tliat  the  said  J.  J.,  zvho  located 
claim  No.  10,  northwesterly  of  the  said  Oro  lode,  and  the  said  J. 
S.,  who  located  claim  No.  11,  northzvesterly  thereon,  were  seised 
and  possessed  of  said  claims,  and  occupied  and  mined  thereon  un- 
til the  tenth  day  of  June,  1905,  at  which  time  the  said  S.  and  J. 
sold  and  conveyed  tJve  same  to  the  said  corporation,  and  thereupon 
the  said  corporation  zvas  seised  and  possessed  of  said  minin^^ 
claims  and  locations,  and  occupied  and  mined  thereon  until  the 
thirtieth  day  of  September,  ipo^,  at  zvhich  time  tlve  said  corpara- 
tion  sold  and  conveyed  the  same  to  this  affiant,  as  will  fully  ap- 
pear by  reference  to  the  abstract  of  title  and  paper  hereto  attached, 
marked  E.rhibit  D,  and  which  this  affiant  hereby  makes  a  part  of 
this  his  affidaz'it. 

Affiant  further  says,  that  he  is  nozv  and  Ims  been  in  the  occupa- 
tion and  possession  of  the  said  lode  since  the  thirtieth  day  of  Aug- 
ust, iQOf\.  and  tlwt  said  lode  and  mining  claims  zvere  located,  and 
the  title  tlu:reto  established,  several  years  before  said  (applied  for) 
Oro  lode  was  located. 


296  New  Book  op  Forms. 

Affiant  further  says,  that  said  Oro  lode,  as  shown  by  the  notice 
and  diagram  posted  on  said  claim,  and  tlve  copy  thereof  tiled  in  the 
United  States  Land  Office,  zinth  said  application  for  a  patent, 
crosses  a>ui  ozrrlaps  said  Oro  lode,  and  embraces  about  thirty 
hundred  feet  in  length  by  three  hundred  feet  in  width  of  the 
said  Oro  lade,  tlu  property  of  this  affiant,  as  fully  appears 
by  reference  to  the  diagram  or  map  duly  certiHed  by  the  U. 
S.  Deputy  Surveyor,  hereto  attached,  marked  Exhibit  C,  and 
which  diagram  presents  a  correct  description  of  the  relative 
locations  of  the  said  (adverse)  lode,  and  of  the  pretended  (ap- 
plied for)  lode. 

Affiant  further  says,  that  he  is  informed  and  believes  that  said 
applicant  for  patent  well  knezv  that  affiant  was  the  owner  in  pos- 
session and  entitled  to  the  possession  of  so  much  of  said  mining 
ground  embraced  within  the  survey  and  diagram  of  said  applica- 
tions as  is  hereinbefore  stated,  and  that  this  affiant  is  entitled  to 
all  the  gold  and  other  metal  in  said  (adverse)  lode,  and  all  that 
may  be  contained  within  a  space  of  three  hwulred  feet  on  each 
side  of  said  (adverse)  lode. 

And  affiant  further  says  that  this  protest  is  made  in  entire  good 
faith,  and  with  the  sole  object  of  protecting  the  legal  rights  and 
property  of  this  affiant  in  the  said  (adverse)  lode  and  mining 
preni  ises. 

SURVEYOR'S  CERTIFICATE. 

[On  the  diagram  marked  Exhibit  C,  the  surveyor  must  certify 
in  effect  as   follows:] 

I  hereby  certify  that  the  above  diagram  correctly  represents 
the  conflict  claimed  to  exist  between  the  Oro  and  Oro  Gold  lodes, 
as  actually  surveyed  by  me.  And  I  further  certify,  that  the  value 
of  the  labor  and  improvements  on  the  (adverse)  lode  exceeds  ffve 
hundred  dollars,  and  said  improvements  consist  of  [state  in  full]. 

No.  415. — Notice  of  Forfeiture — Form  Y. 

State  of  California,  County  of  Sierra,  1905. 
To  A.  C; 

You  are  hereby  notified  that  I  have  expended  three  hundred 
dollars  in  labor  and  improvements  upon  the  Oro  lode,  as  will  ap- 
pear by  certificate  filed  August  i,  ipoj,  in  the  office  of  the  re- 
corder of  said  county  (or  district),  in  order  to  hold  said  premises 
under  the  provisions  of  section  2324,  Revised  Statutes  of  the 
United  States,  being  the  amount  required  to  hold  the  same  for 
the  year  ending  August  jo,  ipo^.  And  if  within  ninety  days 
from  the  service  of  this  notice  (or  within  ninety  days  after  this 
notice  by  publication),  you  fail  or  refuse  to  contribute  your  pro- 
portion of  such  expenditure  as  co-owner,  yotir  interest  in  said 
claim  will  become  the  property  of  the  subscriber  under  said  sec- 
tion 2324. 


Mortgage.  297 

NOTE. — At  the  expiration  of  one  hnmlred  and  eighty  davfl,  this 
printed  notice  should  be  reeordrd.  with  the  affidavit  of  the  newspaper 
publisher  that  the  same  was  published  for  the  period  of  ninety  days, 
together  with  the  affidavit  of  the  party  signing  the  notice,  to  the  effect 
that  one  or  more  of  the  co-ownei-s  named  in  the  published  notice  have  not 
paid  their  share  of  the  expenditure.     This  completes  the  record  title. 


MORTGAGE. 


No.  416. — Mortgage  of  Personal  Property — Machinery. 

This  mortgage,  made  the  jd  day  of  June,  in  the  year  1903,  by 
A.  B.,  of  Oakland,  California,  by  occupation  a  machinist,  mort- 
gagor, to  C.  D.  of  the  same  place,  by  occupation  a  banker,  mort- 
gagee witnesseth : 

That  the  mortgagor  mortgages  to  the  mortgagee  20  Crosby 
steam-engine  indicators;  10  Crosby  pressure  and  vacuum  gauges; 
10,000  Branden  rubber  pump  valves;  ^00  Johnstone  blow-off 
valves;  1,000  Weinland  tube  cleaners,  and  1,227  ^^^^  of  Curtis 
steam  separators,  as  security  for  the  payment  to  him  of  $§,000,  on 
the  sd  day  of  June,  in  the  year  ipo6,  with  interest  thereon  at  the 
rote  of  ten  per  cent  per  month  from  date,  interest  payable  monthly 
in  advance. 

A.  B. 

NOTE. — California:  A  distinction  is  made  between  a  mortgage  of 
land  and  of  personal  property.  In  many  other  places  there  is  no  differ- 
ence, except  in  acknowledgment  and  verification.  A  mortgage  of  laifd 
is  void,  except  as  between  the  parties  and  those  having  notice,  unless 
it  be  acknowledged  and  recorded  in  the  county  where  the  land  is  situ- 
ated. If  the  land  is  in  two  counties,  it  must  be  recorded  in  each.  An 
unrecorded  mortgage  is  good  between  the  parties  and  as  to  all  persons 
having  actual,  or  constructive,  notice  of  it,  even  if  it  be  not  acknowl- 
edged. If  a  party  is  in  possession  of  land,  holding  under  a  mortgage 
not  recorded,  his  claim  will  be  prior  to  a  purchaser,  in  good  faith,  who 
depended  upon  the  records  of  the  county  for  information.  It  is  the  duty 
of  the  purchaser  to  inquire  as  to  the  possession  of  the  holder  of  the 
unrecorded  mortgage.  In  all  such  transactions,  notice  is  a  question  of 
fact.     The  same  rule  applies  to  deeds:  C.  C,  sees.  1039-1173. 

As  to  personal  property,  a  mortgage  is  void  as  against  creditors  of 
the  mortgagor  ant!  subsequent  purchasers  and  er.einnhrancers  of  the 
property  in  good  faith  and  for  value,  unless:  1.  It  is  accompanie<1  bv 
thf  affidavit  of  all  the  parties  thereto  that  it  is  made  in  good  faitli  and 
without  any  design  to  hinder,  delay,  or  defraud  creditors;  2.  It  is  fii- 
knowledgfd  or  proved,  certified  and  recorded,  in  like  manner  as  crants 
of  real  property:   C.  C,  sees.  2956,  2957. 

Alaska,  Codes,  pt.  5,  c.  11,  sees.  73-118;  Arizona,  C.  C,  pars.  32(i0-3."02; 
Colorado.  :\riirs  Stats.  (Personaltv),  sees.  3S5-394.  pp.  555-5(v5;  (Lnr-l/ 
sees.  4G9-499,  pp.  605-637;  Idaho,'C.  C,  sees.  2815-2832;  Montana,  C.  C^' 


298  New  Book  of  Forms. 

sees.  3840-3876;  Nevada,  Comp.  Laws,  sees.  2705-2715;  New  Mexico, 
Comp.  Laws,  sees.  2360-3960;  North  Dakota,  C.  C,  sees.  4731-4736; 
Oregon,  Codes  and  Statutes,  sees.  5630-5639;  South  Dakota,  C.  C,  sees. 
2042-2069;  Utah,  Eev.  Stats.,  sees.  150-168,  1982;  Washington,  Ballin- 
ger's  Codes,  sees.  4557-4560,  5870-5896;  Wyoming,  Eev.  Stats,  sees.  2774- 
2828. 

Chattel  Mortgages — Construction  of  Statute — What  Constitutes. — An 
absolute  assignment  of  a  lease  with  defeasance  made  to  secure  a  debt 
is  a  chattel  mortgage:  Polhemus  v.  Trainer,  30  Cal.  685. 

li  an  instrument  transfers  shares  of  stock  to  secure  a  loan,  it  is  a 
irortgage:  Smith  v.  49  and  56  Quartz  M.  Co.,  14  Cal.  242. 

Section  2955  of  the  Civil  Code,  providing  upon  what  property  chattel 
mortgages  may  be  made,  is  to  be  liberally  and  reasonably  construed: 
Blaisdell  v.  McDowell,  91  Cal.  285,  25  Am.  St.  Eep.  178,  27  Pac.  656. 

Change  of  Possession. — Such  mortgages  generally  do  not  depend  upon 
change  of  possession  of  the  property:  Person  v.  Nunan,  63  Cal.  550; 
but  as  to  all  property  not  described  in  section  2955,  Civil  Code,  change  of 
possession,  except  as  between  the  parties,  is  necessary  to  their  validity: 
Trcgear  v.  Etiwanda  W.  Co.,  76  Cal.  537,  9  Am.  St.  Eep.  245,  18  Pac.  658. 
In  the  same  ease  it  was  held  that  the  mortgage  was  valid  even  when  it 
appeared  that  it  included  personal  property  without  change  of  posses- 
sion and  the  same  mortgage  includes  real  estate. 

The  crop  must  be  delivered  to  the  mortgagee  after  it  is  harvested. 
If  it  is  not,  it  is  void  as  to  subsequent  purchasers:  Quiriaque  v.  Dennis, 
24  Cal.  154.  The  possession  of  the  mortgagee  must  be  actual:  Woods 
V.  Bugbery,  29  Cal.  466. 

If  a  mortgagee  takes  immediate  and  actual  possession  of  the  property 
in  the  absence  of  a  contract  that  he  may  do  so,  he  cannot  claim  by 
virtue  of  such  possession,  if  the  covenants  of  the  mortgage  show  that 
h-  is  not  entitled  to  possession:  Meyer  v.  Gorham,  5  Cal.  322. 

Legal  Title  to  Property  Mortgaged. — The  cases  say  that  a  chattel 
mortgage  vjsts  the  legal  title  to  the  property  in  the  mortgagee,  sub- 
ject to  be  revested  in  the  mortgagor  upon  performance  of  the  condition; 
and  in  case  of  breach  of  condition,  the  title  becomes  absolute  at  law 
in  the  mortgagee:  Heyland  v.  Badger,  35  Cal.  404.  But,  in  fact,  the  title 
does  not  become  absolute  in  the  mortgagee  until  the  mortgagor's  right 
of  redemption  by  a  sale  of  the  property  is  made  in  the  manner  and  ujjon 
th  notice  prescribed  by  the  law  relating  to  pledge,  or  by  foreclosure. 
As  to  pledge,  see  C.  C,  sec.  3011;  as  to  foreclosure,  see  C.  C.  P.,  sec.  726. 

Increase  of  Property  Mortgaged. — The  wool  sheared  from  mortgaged 
sheep  in  the  possession  of  a  mortgagor  belong  to  the  mortgagee.  The 
words  "increase"  in  the  Civil  Code,  section  2955,  imports  only  the  natu- 
ral increase  of  animals  mortgaged  and  not  tbe  profits  arising  "rom  their 
are:  Alferitz  v.  Borgwardt,  126  Cal.  201,  58  Pac.  460. 

Also  the  mortgagor  may  lawfully  take  and  sell  animals  which  were 
in  gestation  at  the  date  of  the  mortgage  and  wool  growing  on  the 
backs  of  sheep:  First  Nat.  Bank  v.  Errica,  116  Cal.  81,  58  Am.  St.  Eep. 
133,  47  Pac.  926.  The  mortgagor  in  possession  is  entitled  to  whatever 
income  or  profit  may  be  derived  from  the  use  of  the  property,  and  is 
the  owner  of  the  offspring  or  increase  of  domestic  animals  mortgaged 
which  are  begotten  and  born  after  the  execution  of  the  mortgage  and 
prior  to  foreclosure:  Shoobert  v.  De  Motta,  112  Cal.  215,  53  Am.  St.  Eep. 
207,  44  Pac.  487. 

Form  as  to  Residence — Occupation. — A  "residence"  stated  to  be  in 
Sierra  county,  California,  is  proper,  and  occupation,  "late  merchant,  of 
Pine  Grove,"  is  suflicient:  Ede  v.  .Johnson,  15  Cal.  53.  The  same  case 
Bays  that  if  it  is  stated  that  the  parties  have  no  occupation  or  profea- 


Mortgage.  299 

Bion,  such  mortgage  would  be  valid.  Nothing  is  said  about  what  would 
bi'  the  fate  of  a  chattel  niortjroge  if  the  evidence,  on  foreclosure,  showed 
that  the  affidavit  of  occupation  or  residence  was  false.  In  one  case 
it  is  said  that  the  law  regulating  such  mortgages  except  as  between 
the  parties,  must  be  strictly  complied  with:  Gassner  v.  Patterson,  23  Cal. 
299;  but  it  would  seem  that  the  legislature  in  permitting  a  mortgage 
of  chattel  to  be  made  by  the  possessor,  without  change  of  possession,  in- 
tended what  it  said,  and  if  so,  such  mortgage,  either  negligently  or  in- 
tentionally false,  is  void  upon  the  same  principle  that  permits  an  ac- 
knowledgment of  the  same  instrument  to  be  contradicted. 

No.  417. — Mortgage  of  Personal   Property — Crop. 

This  mortgage,  made  the  ^d  day  of  June,  one  tliousand  nine 
hundred  and  Hve,  by  A.  B.,  a  resident  of  the  county  of  Sacramento, 
California,  by  occtipation  a  farmer,  mortgagor,  to  C.  D.,  a  resi- 
dent of  the  county  of  Yuba,  California,  by  occupation  a  banker, 
mortgagee,  witnesseth :  That  the  said  mortgagor  mortgages  to  the 
said  mortgagee  all  that  certain  personal  property  situated  and  de- 
scribed as  follows,  to  wit  [description]  as  security  for  the  pay- 
ment to  the  said  C.  D.,  the  said  mortgagee,  of  the  sum  of  $10,000 
gold  coin  of  the  United  States  of  America,  on  the  ^d  day  of  No- 
icmber,  one  thousand,  nine  hundred  and  five,  with  interest  thereon 
at  the  rate  of  10  per  cent  per  annum,  according  to  the  terms  and 
conditions  of  a  certain  promissory  note  dated  June  5,  A.  D.  190^, 
and  in  the  words  and  figures  following,  to  wit:   [Copy  of  note.] 

It  is  also  agreed  that  if  the  mortgagor  shall  fail  to  make  any 
payment  as  in  the  said  promissory  note  provided,  then  the  mort- 
gagee may  take-  possession  of  the  said  property,  using  all  neces- 
sary force  so  to  do  and  may  immediately  proceed  to  sell  the  same 
in  the  manner  provided  by  law,  and  from  the  proceeds  pay  the 
whole  amount  in  said  note  specified,  and  all  costs  of  sale,  includ- 
ing counsel  fees  not  exceeding  10  per  cent  upon  the  amount  due, 
paying  the  surplus  to  the  said  mortgagor. 


No.  418. — Mortgage  of  Personal  Porperty — Crop. 

This  Indenture,  made  the  jti  day  of  June,  in  the  year  of  our 
Lord  one  thousand  nine  hundred  and  Hve,  between  A.  B.,  a  resi- 
dent of  the  county  of  Sacramento,  in  the  state  of  California,  by 
occupation  a  farmer,  mortgagor  and  party  of  the  first  part,  and 
C.  D..  a  resident  of  the  county  of  Yuba,  California,  by  occupation 
a  lender  of  money,  mortgagee  and  party  hereto  of  the  second  part, 
witnesseth:  That  the  said  mortgagor,  for  and  in  consideration 
pf  the  sum  of  ten  dollars,  gold  coin  of  the  United  States  of  Amer- 
ica, to  him  in  hand  paid,  the  receipt  whereof  is  hereby  acknowl- 
edged, does  by  these  presents,  grant,  bargain,  sell  and  convey 
unto  the  said  party  of  the  second  part,  and  to  his  heirs  and  assigns 
forever,  the  following  growing  crop,  viz. :  The  crop  of  grain  now 


300  New  Book  of  Forms. 

being,  standing  and  growing  upon  that  certain  piece  or  parcel  of 
land,  lying  and  being  in  the  said  county  of  Sacramento,  state  of 
California,  and  particularly  described  as  follows,  viz. :  [Descrip- 
tion.] 

To  have  and  to  hold,  the  above  mentioned  and  described  crop, 
subject  to  the  provisions  hereinafter  contained. 

Provided,  nevertheless,  and  these  presents  are  upon  the  express 
condition  that  if  the  said  party  of  the  first  part,  his  heirs,  execu- 
tors, administrators  or  assigns,  shall  well  and  truly  pay  or  cause 
to  be  paid  unto  the  said  party  of  the  second  part,  his  executors, 
administrators  or  assigns,  the  sum  of  $10,000  on  the  jc/  day  of 
November,  A.  D.  1905,  with  interest  at  the  rate  of  eight  per  cent 
per  year  from  the  date  hereof  until  paid,  according  to  the  true 
intent  and  meaning  of  a  certain  promissory  note  dated:  [Describe 
the  note.] 

And  when  said  amount  as  stipulated  as  by  the  said  promissory 
note,  reference  thereunto  being  had,  will  more  fully  appear,  then 
these  presents  shall  be  void.  And  the  party  of  the  first  part  doth 
hereby  covenant  and  agree  to  and  with  the  party  of  the  second 
part,  his  heirs  and  assigns,  that  he  will  well  and  carefully  tend, 
take  care  of  and  protect  the  said  crop  while  growing  and  until  fit 
for  harvest,  and  then  faithfully  and  without  delay,  harvest,  thresh, 
clean  and  sack  the  same,  and  deliver  the  same  immediately  into 
the  possession  of  the  said  party  of  the  second  part,  or  his  assigns, 
to  be  by  him  held  and  disposed  of,  for  the  payment  of  the  debt 
hereby  secured;  that  in  default  of  any  or  either  of  the  above  acts 
to  be  done  by  the  said  party  of  the  first  part,  or  for  any  other  rea- 
son satisfactory  to  the  party  of  the  second  part,  or  his  assigns  may 
enter  into  the  premises  and  take  all  necessary  measures  for  the 
protection  of  said  crop,  and  may  retain  possession  thereof,  and 
harvest,  thresh  and  sack  the  same;  and  all  expenses  so  incurred, 
and  all  that  may  become  necessary  in  the  keeping  and  care  of  said 
crop,  as  well  as  the  hauling,  storing  and  delivery  thereof,  shall  be 
secured  by  this  mortgage,  and  shall  be  first  payable  out  of  the 
money  realized  from  the  sale  of  said  crop ;  that  the  said  party  of 
the  second  part,  or  his  assigns,  shall  and  may  at  all  times  enter 
into  the  premises  to  view  the  same,  or  to  take  any  measures  nec- 
essary for  the  protection  of  said  crop  or  his  interest  therein ;  and 
that  upon  harvesting  thereof  shall  be  entitled  to  the  immediate 
possession  of  the  same,  and  may  haul  and  store  the  same  at  the 
expense  of  the  said  party  of  the  first  part ;  and  does  for  the  pur- 
lioses  aforesaid,  make,  constitute  and  appoint  the  said  party  of 
the  second  part,  or  his  assigns,  his  true  and  lawful  attorney,  with 
full  power  to  enter  upon  said  premises  and  take  possession  of  said 
crop,  and  take  care  of,  protect,  thresh,  clean  and  sack  the  same; 
and  does  further  authorize  him,  or  assigns,  to  take  possession  of 
said  crop,  when  harvested,  to  haul  and  store  the  same,  to  sell  and 


Mortgage.  301 

dispose  of  the  same  or  any  part  tlicrcof,  at  such  time  and  times, 
and  for  such  sum  of  money  as  he  may  deem  proper,  and  most  for 
the  mutual  advantage  and  benefit  of  all  concerned,  and  out  of  the 
proceeds  of  said  sale,  first  to  retain  the  costs  and  charges  thereof 
and  any  and  all  expenses  by  the  partv  of  the  second  part,  incurred 
in  the  care  and  protection,  harvesting,  hauling  or  storing  the 
same,  and  commission  for  selling  the  same ;  second,  to  apply  the 
residue  to  the  payment  of  said  note,  rendering  the  overplus,  if 
any  there  be,  to  the  said  party  of  the  first  part,  or  his  assigns. 

NOTE. — The  words  "{growing  croy>3"  include  grapes  and  fruit  of  all 
descriptions:  C.  C,  sec.  2955,  subd.  10. 

No.  419. — Mortgage  of  Personal  Property — Crop. 

This  mortgage,  made  the  3d  day  of  June,  in  the  year  one  thou- 
sand nine  hundred  and  five,  by  A.  B.,  a  resident  of  the  county  of 
Alameda,  state  of  California,  by  ocaipation  a  farmer,  mortgagor, 
and  C.  D.,  a  resident  of  the  same  place,  by  occupation  a  banker, 
mortgagee,  witnesscth :  That  the  mortgagor  mortgages  to  the 
mortgagee  the  following  growing  crops,  all  the  grain  now  stand- 
ing and  growing  upon  that  parcel  of  land  in  the  said  county  of 
Alameda,  state  of  California,  and  particularly  described  as  fol-  , 
lows,  to  wit:  [Description.]  i 

As  security  for  the  payment  to  the  mortgagee  of  $10,000,  evi- 
denced by  a  certain  promissory  note,  in  the  words  and  figures  fol- 
lowing, to  wit:  [Copy  of  note.]  And  also  to  secure  such  other 
moneys  as  mav  be  hereafter  loaned  or  advanced,  or  to  secure  pay- 
ment for  the  merchandise  sold  to,  or  for  account  of  said  mortgagor 
by  said  mortgagee,  during  the  continuance  of  this  mortgage  not 
to  exceed  in  all  the  sum  of  $3,000,  exclusive  of  the  sum  men- 
tioned in  said  promissory  note.  And  the  said  mortgagor  do^.? 
hereby  agree  that  he  will  carefully  care  for  and  protect  the  said 
crop  until  fit  for  harvest,  and  then  without  delay  harvest  and  de- 
liver the  same  immediately  into  the  possession  of  the  said  mort- 
gagee, to  be  by  him  disposed  of  for  the  payment  of  the  moneys 
hereby  secured ;  that,  in  default  of  any  of  the  above  acts  to  be  done 
by  the  said  mortgagor,  the  said  mortgagee  may  at  any  time  enter 
upon  the  premises  and  take  all  necessary  measures  for  the  protec- 
tion of  said  crop,  and  may  retain  possession  thereof,  harvest,  and 
all  other  expenses  so  incurred,  and  all  that  may  become  necessary 
in  the  keeping  and  care  of  said  crop,  as  well  as  the  hauling,  stor- 
ing and  deliver}^  thereof,  shall  be  secured  by  this  mortgage,  and 
shall  be  first  payable  in  United  States  gold  coin,  out  of  the  monev 
realized  from  the  sale  of  said  crop ;  that  said  mortgagee  or  his 
assigns,  may  at  any  time  enter  in  the  premises  to  view  the  same, 
or  to  take  any  measures  he  may  deem  necessary  for  the  protection 
of  said  crop  or  his  interests  therein,  and  that  upon  the  harvesting 


302  New  Book  of  Forms. 

thereof,  shall  be  entitled  to  the  immediate  possession  of  the  same, 
and  may  haul  and  store  the  same  at  the  expense  of  the  mortgagor, 
and  said  mortgagor  hereto  do^^,  for  the  purposes  aforesaid,  make, 
constitute  and  appoint  the  said  mortgagee,  and  his  assigns,  his 
true  and  lawful  attorne}^  irrevocable,  with  full  power  to  enter  upon 
said  premises  and  take  possession  of  said  crop,  and  take  care  of, 
protect  the  same,  in  case  of  any  default  on  the  part  of  said  mort- 
gagor of  the  covenants  herein  contained ;  and  does  further  author- 
ize said  mortgagee  hereto  or  his  assigns  to  take  possession  of  said 
crop,  when  harvested,  to  haul  and  store  the  same,  to  sell  and  dis- 
pose of  the  same,  or  any  part  thereof,  at  such  time  and  times  and 
for  such  sum  or  sums  of  money  as  he  may  deem  proper  and  for 
the  best  advantage  of  all  concerned ;  and  out  of  the  proceeds  of 
said  sale,  first,  to  retain  the  costs  and  charges  thereof,  and  any 
and  all  expenses  by  the  part3'  of  the  second  part  incurred  in  the 
care  and  protection,  harvesting,  hauling  or  storing  the  same,  and 
commission  for  selling  the  same ;  second,  to  apply  the  residue  to 
the  payment  of  said  promissory  note,  and  such  other  moneys  as 
may  have  been  paid,  loaned  or  advanced,  or  merchandise  sold  as 
aforesaid,  rendering  the  overplus,  if  any  there  be,  to  the  said 
mortgagor. 

No.  420. — Affidavit  of  Parties  to  Chattel  Mortgage. 

State  of  California, 
County  of  Alameda, — ss. 

A.  B.,  mortgagor  in  the  foregoing  mortgage  named,  and  C.  D., 
the  mortgagee  in  said  mortgage  named,  being  duly  sworn,  each 
for  himself,  deposes  and  says,  that  the  aforesaid  mortgage  is  made 
in  good  faith  aild  without  any  design  to  hinder,  delay  or  defraud 
creditors. 

No.  421. — Acknowledgment  of  Chattel  Mortgage. 

State  of  California, 
County  of  Alameda, — ss. 

On  this  jc?  day  of  June,  in  the  year  one  thousand  nine  hundred 
and  five,  before  me,  /.  M.,  a  notary  public,  personally  appeared 
A.  B.  and  C.  D.,  known  to  me  to  be  the  persons  whose  names  are 
subscribed  to  the  within  instrument,  and  they  each  acknowledged 
to  me  that  they  executed  the  same. 

No.  422. — Mortgage  of  Land — Code  Form. 

This  mortgage,  made  the  ^d  day  of  June,  in  the  year  1905,  by 
A.  B.,  of  the  city  of  Sacramento,  California,  mortgagor,  to  C.  D., 
of  the  same  place,  mortgagee,  witnesseth :  That  the  mortgagor 


Mortgage  303 

mortgn^es  to  the  mortgagee  the  southwest  quarter  of  the  south- 
west quarter,  section  No.  26,  in  township  No.  ig  south,  of  range 
28  east,  Mouvt  Diablo  base  and  meridian,  as  security  for  the  pay- 
ment to  him  of  ^7,000,  on  the  jrf  day  of  June,  in  the  year  igo6, 
with  interest  thereon  at  the  rate  of  six  per  cent  per  year,  interest 
payable  on  the  first  day  of  every  month.  [Or  as  security  fon 
the  payment  of  a  promissory  note  or  other  instrument.'\ 

A.  B. 

NOTR. — Mortgaji^es  of  real  property  may  be  aeknowledfjed  or  proved, 
certified  and  recorded  in  like  manner  and  with  like  effect  as  grants 
thereof:  C.  C,  sec.  2952. 

Mortgage  Generally — What  is. — A  deed  absolute  in  form  given  to  se- 
cure a  debt  is  a  mortgage,  and  the  facts  attending  its  execution  may 
be  shown  by  parol  evidence.  If  a  debt  existed  which  was  canceled  by 
the  deed,  the  title  passed.  If  the  debt  is  not  extinguished,  it  is  a  mort- 
gage:  Ahem  v.  McCarty,  107  Cal.  382,  40  Pac.  482. 

In  case  the  deed  is  given  to  secure  a  debt  and  if  a  written  promise 
is  made  to  reconvey  when  the  debt  is  paid,  the  grantor  may  surrender  the 
written  promise  (defeasance),  and  the  grantee  may  surrender  to  the 
grantor  the  evidence  he  holds  of  the  debt,  and  if  there  is  no  fiaud,  and 
it  is  fair  and  honest,  and  no  unconscionable  advantage  has  been  taken 
by  the  mortgagee  (or  the  mortgagor),  the  deed  thereby  becomes 
absolute:  "Watson  v.  Edwards,  105  Cal.  70,  38  Pac.  527.  It  is  not  a  con- 
veyance. It  is  nothing  more  than  security  for  a  debt.  Title  docs  not 
pass  either  before  or  after  condition  broken  except  by  deed  or  on  fore- 
closure: Guy  v.  Ide,  6  Cal.  99,  65  Am.  Dec.  490. 

Form  of  Execution.- — If  the  mortgage  is  given  to  secure  a  debt,  the 
form  of  contract  is  not  material.  The  debt  must  be  capable  of  identifi- 
cation, but  it  may  be  evidenced  by  a  promissory  note,  bond  or  any  other 
written  obligation  for  the  payment  of  money.  The  words  "I  mort- 
gage the  property,"  described  in  the  writing,  accompanied  by  a  provi- 
sion for  the  sale  of  the  property,  is  all  that  is  necessary:  Blakeman  v. 
Valle.io,  15  Cal.  638.  Neither  bond  nor  note  is  necessary  if  a  mortgage 
describes  a  debt  and  contains  a  promise  to  pay  it:  De  Leon  v.  Hig- 
uera,  15  Cal.  483. 

Two  instruments  taken  together  described  property  and  the  amount  of 
indebtedness,  and  conveyed  the  premises  as  security  for  the  indebted- 
ness. Held,  to  be  a  good  mortgage:  Woodward  v.  Guzman,  1  Cal.  203.  Al- 
though that  ease  is  ancient  California  law,  and  notwithstanding  the 
CivO  Code  provision  that  a  mortgage  must  be  executed  with  the  formal- 
ities necessary  for  a  grant  of  real  property,  it  is  in  harmony  with  all 
the  cases  holding  that  an  absolute  deed  in  form  is  a  mortgage  if  there 
is  also  a  separate  written  defeasance. 

Agreement  to  Give  a  Mortgage. — A  written  agreement  to  give  a  mort- 
gage, or  a  mortgage  defectively  executed,  or  an  imperfect  attempt  to 
create  a  mortgage  or  to  appropriate  specified  property  to  the  discharge  of 
a  particular  debt,  creates  a  mortgage  in  equity  and  creates  a  lien  upon 
the  property  intended  to  be  mortgaged.  The  form  of  the  writing  is  not 
important  if  it  shows  that  it  was  an  attempt  by  it  to  secure  a  debt: 
Higgins  V.  Manson,  126  Cal.  467,  77  Am.  St.  Rep.  192,  58  Pac.  907. 

Description  of  Thing  Mortgaged. — A  description  of  the  thing  attempted 
to  be  mortgaged  which  is  inherently  uncertain  cannot  be  corrected,  but 
if  it  is  capable  of  ditTcreut  constructions  (different  applications),  facts 
•nd  ciicamstances  outside  of  the  transaction  may  be  resorted  to  for  the 


304  New  Book  of  FoR^rs. 

purpose  of  ascertaining  to  whom  or  what  the  description  was  intended 
to  apy^lv:  Woodward  v.  McAdam,  101  Cal.  -438,  35  Pac.  1016, 

If  it  is  possible  from  the  whole  description  to  identify  the  property 
described  in  the  mortgage,  it  is  suiBciont.  The  same  rule  applies  to 
deeds:  Rea  v.  Haffenden,  116  Cal.  596,  48  Pac.  716. 

If  mistahes  in  descriptions  have  been  carried  down  through  foreclosure 
into  a  sheriff's  deed,  courts  have  jurisdiction  to  trace  them  back  to  the 
original  transaction  and  reform  the  mortgage  and  make  it  and  all  sub- 
sequent proceedings  conform  to  the  intentions  of  the  parties:  Busey  v. 
Moraga,  130  Cal.  586,  62  Pac.  1081. 

Reference  in  a  mortgage  to  land  described  in  a  patent  makes  an  un- 
certain description  sufficient:  Higgins  v.  Manson,  126  Cal.  467,  77  Am. 
St.  Eep.  192,  58  Pac.  907. 

A  description  was,  "That  certain  tract  or  parcel  of  land  situated  in 
said  county  of  Napa,  consisting  of  a  pre-emption  claim  of  one  hundred 
and  sixty  acres  and  commonly  known  as  Soda  Springs,  and  embracing 
the  said  springs,  and  the  improvements  thereon  belonging,  and  being 
about  three  miles  from  Napa  City,  in  a  northerly  direction  together 
with  all  and  singular  the  tenements."  Held,  to  be  sufficient:*  Whitney 
v.  Buckman,  13  Cal.  536. 

Real  and  Personal  Property. — A  mortgage  of  both  real  and  personal 
property  is  valid  and  may  be  foreclosed  and  also  sold  under  the  same  de- 
cree, and  the  fact  that  some  of  the  personal  property  is  not  mortgag- 
able  does  change  the  rule:  San  Francisco  Breweries  v.  Schurtz,  104  CaL 
420,  38  Pae.  92. 

A  mortgage  may  be  on  property  to  be  acquired  after  the  execution 
of  the  mortgage  (or  on  property  not  in  existence) :  California  Title  etc. 
Co.  v.  Pauly,  111  Cal.  122,  43  Pac.  586. 

Lease  by  Mortgagor. — If  a  lessee  has  either  actual  or  constructive  no- 
tice of  a  mortgage,  the  mortgagor  cannot  make  a  lease  that  will  bind 
the  mortgagee.  When  the  mortgage  is  foreclosed,  the  rights  of  such 
lessee  are  determined  even  if  he  be  not  a  party  to  the  foreclosure  suit: 
McDermot  v.  Burke,  16  Cal.  580. 

Fixtures. — Fixtures  attached  to  leased  property  become  part  of  the 
realty,  and  while  so  attached  a  mortgage  of  the  leasehold  covers  them, 
and  are  to  be  sold  as  part  of  the  realty,  and  one  who  purchases  them 
under  execution  subsequently  to  the  execution  of  the  mortgage  takes  noth- 
ing: San  Francisco  Breweries  v.  Schurtz,  104  Cal.  420,  38  Pac.  92. 

Further  Advances.— A  mortgage  may  be  given  to  secure  "present  in- 
debtedness" and  "further  advances."  In  such  case  if  the  "present  in- 
debtedness" is  barred  by  statute  on  account  of  lapse  of  time,  the  mort- 
gage may  be  foreclosed  to  enforce  the  "future  advances":  London  and 
Son  Francisco  Bank  v.  Bondmann,  120  Cal.  220,  65  Am.  St.  Rep.  179, 
52  Pac.  583.  If  it  is  silent  as  to  such  advances,  they  may  be  recovered 
if  made  in  good  faith:  Tully  v.  Harlow,  35  Cal.  302,  95  Am.  Dee.  102. 

Payment. — Renewal  of  a  note  secured  by  mortgage  is  not  payment, 
A  mortgage  secures  a  debt  and  not  any  particular  evidence  of  it.  The 
mortgage  Uen  is  not  affected  by  a  change  in  the  note,  or  by  giving  a  dif- 


*See  Code  form  of  mortgage,  post.  Under  California  Civil  Code,  sec. 
2948,  the  words,  "Norris  Rancho"  and  the  Hke,  is  a  sufficient  descrip- 
tion. A  mortgage  must  executed  with  the  formalities  required  in 
case  of  a  grant  of  real  property:  C.  C,  see.  2922.  Also,  Porter  v.  Mnller, 
53  Cal.  677.  A  grant  of  real  property  by  its  name  is  sufficient,  to  wit> 
"Norris   Ranch":    C.   C,   sec.   1092. 


Mortgage.  305 

ferent  instmment  as  evidence  of  the  debt,  or  by  an  exbensir/a  of  time. 
It  can  only  be  discharged  by  payment  or  by  rdease:  Satber  Banking  Co, 
V.  A.  R.  Briggs  Ck).,  138  Cal.  724,  72  Pa«.  352. 

No.  423. — Mortgage  of  Land. 

This  Indenturic,  made  the  ^d  day  of  June,  in  the  year  one 
thousand  nine  hundred  and  five,  between  A.  B.,  the  party  of  the 
first  part,  and  C.  D.,  the  part;y  of  the  second  part,  witnesseth : 
That  the  said  party  of  the  first  part,  for  and  in  consideration  of 
the  sum  of  $10,000,  gold  coin  of  the  United  States  of  America, 
to  him  in  hand  paid,  the  receipt  whereof  is  hereby  acknowledged, 
do^^  by  these  presents  grant  unto  the  said  party  of  the  second  part 
his  heirs  and  assigns  forever,  all  tliat  land  in  the  county  of  Sac- 
ramento, state  of  California,  bounded  and  particularly  described 
as  follows,  to  wit:  [Description.] 

Together  with  all  and  singular  the  tenements,  hereditaments 
and  appurtenances  thereunto  belonging  or  in  anywise  appertain- 
ing. 

To  have  and  to  hold,  all  and  singular  the  said  premises,  to- 
gether with  the  appurtenances,  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns  forever. 

This  conveyance,  however,  is  intended  as  a  mortgage  to  secure 
the  payment  of  [state  the  object]. 

This  mortgage  is  also  intended  to  secure,  and  does  hereby  se- 
cure, the  payment  of  all  liens  (except  the  lien  for  taxes  on  this 
mortgage),  encumbrances,  charges  and  counsel  fees  herein  men- 
tioned ;  said  counsel  fees  to  become  payable  and  be  allowed  if  suit 
be  commenced  to  foreclose  this  mortgage,  and  these  presents  shall 
be  void  if  such  payment  be  made,  according  to  the  tenor  and  ef- 
fect thereof;  but  in  case  default  be  made  in  the  payment  of  said 
principal  or  interest,  as  herein  provided,  then  the  said  party 
of  the  second  part,  his  executors,  administrators  and  assigns,  are 
hereby  empowered  to  sell  the  said  premises,  with  all  and  every 
of  the  appurtenances,  or  any  part  thereof,  in  the  manner  pre- 
scribed by  law,  and  out  of  the  money  arising  from  such  sale,  to 
retain  the  said  principal  and  interest,  together  with  the  costs  and 
charges  of  making  such  sale,  and  ten  per  cent  for  attorney's  fees, 
and  the  same  shall  be  considered  as  secured  by  these  presents,  and 
costs  and  charges  and  said  attorney's  fees  shall  be  a  charge  upon 
said  premises,  and  shall  be  payable  on  demand,  and  may  be  de- 
ducted from  the  proceeds  of  the  sale  above  authorized ;  and  the 
overplus,  if  any  there  be,  shall  be  paid  by  the  party  making  such 
sale,  on  demand,  to  the  said  party  of  the  first  part,  his  heirs  or 
assigns. 

No.   424. — Mortgage  of   Land- 

This  Indenture,  made  the  jcf  day  of  June,  in  the  year  one 
thousand  nine  hundred  and  five,  between  A.  B.,  the  party  of  the 
New  Forms — 20 


3o6  New  Book  of  Forms. 

first  part,  and  C.  D.,  the  part3'  of  the  second  part,  witnesseth: 
That  the  said  party  of  the  first  part,  for  and  in  consideration  of 
the  suai  of  $10,000,  gold  coin  of  the  United  States  of  America,  to 
hhn  in  hand  paid,  the  receipt  whereof  is  hereby  acknowledg^ed 
gather  with  the  appurtenances,  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns  forever,  all  that  land  in  the  county 
of  Alameda,  state  of  California,  hounded  and  particularly  de- 
scribed as  follozi's,  to  wit: 
[Description.] 

Together  with  all  and  singular  the  tenements,  hereditaments 
and  appurtenances  thereunto  belonging,  and  the  rents,  issues  and 
profits  thereof. 

To  have  and  to  hold,  all  and  singular,  the  said  premises,  to- 
gether with  the  appurtenances,  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns  forever. 

This  conveyance,  however,  is  intended  as  a  mortgage  to  secure 
the  payment  of  [state  the  object]. 

This  mortgage  is  also  intended  to  secure,  and  does  hereby  se- 
cure, the  payment  of  all  liens,  encumbrances,  charges  and  the 
counsel  fee  herein  mentioned ;  said  counsel  fee  to  become  payable 
and  be  allowed  if  suit  be  commenced  to  foreclose  thfe  mortgage ; 
and  these  presents  shall  be  void  if  such  payment  be  made,  accord- 
ing to  the  tenor  and  effect  thereof ;  but  in  case  default  be  made 
in  the  payment  of  the  said  principal  or  any  installment  of  interest 
as  provided,  then  the  whole  sum  of  principal  and  interest  shall 
be  due  at  the  option  of  the  said  party  of  the  second  part,  or  as- 
signs, and  suit  may  be  immediately  brought  and  a  decree  be  had 
to  sell  the  said  premises,  with  all  and  every  of  the  appurtenances, 
or  any  part  thereof,  in  the  manner  prescribed  by  law,  and  out  of 
the  money  arising  from  such  sale,  to  retain  the  said  principal  and 
interest,  although  the  time  for  payment  of  said  principal  sum  may 
not  have  expired,  together  with  the  costs  and  charges  of  making 
such  sale,  and  of  suit  for  foreclosure,  including  counsel  fees  at 
the  rate  of  ten  per  cent  upon  the  amount  which  may  be  found 
to  be  due  for  principal  and  interest,  by  the  said  decree,  and  also 
the  amounts,  both  principal  and  interest,  of  all  such  payments  of 
iiens  or  other  encumbrances  as  may  have  been  made  by  said  party 
of  the  second  part,  by  reason  of  the  permissions  hereinafter  given, 
and  the  overplus,  if  any  there  be,  shall  be  paid  by  the  party  mak- 
ing such  sale,  on  demand,  to  the  said  party  of  the  first  part,  his 
heirs,  executors,  administrators  or  assigns. 

And  it  is  hereby  agreed  that  the  said  party  of  the  second  part, 
his  heirs,  executors,  administrators  or  assigns,  may  pay  and  dis- 
i'l'arge  at  m.aturity  all  liens  or  other  encumbrances  now  subsisting 
or  hereafter  to  be  laid  or  imposed  upon  said  lot  of  land  and  prem- 
ises, excepting  for  taxes  and  other  assessments,  levied  or  assessed 
upon  this  mortgage,  or  upon  the  money  secured  hereby  and  which 


Mortgage.  307 

may  be  in  effect  a  charge  ihercupon ;  and  such  payments  shall  be 
c'llowed  with  interest  thereon  at  the  rate  of  ten  per  cent  per  year; 
and  such  payments,  and  interest,  and  the  counsel  fees,  costs,  and 
other  expenditures  mentioned  in  this  mortgage,  shall  be  consid- 
ered as  secured  by  these  presents,  and  shall  be  a  charge  and  pre- 
terred  lien  upon  said  premises,  and  shall  be  repayable,  in  the  same 
kind  of  money  or  currency  in  which  the  same  may  have  been  paid, 
and  may  be  deducted  from  the  proceeds  of  the  sale  above  author- 
ized. 

No.  425. — Mortgage  of  Land. 

This  Indenture,  made  the  jd  day  of  June,  in  the  year  of  our 
Lord  one  thousand  nine  hundred  and  Hz'e,  between  A.  B.,  the 
part3'  of  the  first  part,  and  C.  D.,  the  party  of  the  second  part, 
witnesseth :  That  the  said  party  of  the  first  part,  for  and  in  con- 
sideration of  the  sum  of  $10,000,  gold  coin  of  the  United  States 
of  America,  to  him  in  hand  paid,  the  receipt  whereof  is  hereby 
acknowledged,  do^^  by  these  presents,  grant  unto  the  said  party 
of  the  second  part,  his  heirs  and  assigns  forever,  all  of  that  land 
in  the  county  of  Alameda,  state  of  California,  bounded  and  par- 
ticularly described  as  follows,  to  wit:   [Description.] 

Together  wath  all  and  singular  the  tenements,  hereditaments 
and  appurtenances  thereunto  belonging,  and  the  rents,  issues  and 
profits  thereof. 

To  have  and  to  hold,  all  and  singular,  the  said  premises,  to- 
gether with  the  appurtenances,  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns  forever. 

This  conveyance,  however,  is  intended  as  a  mortgage  to  secure 
the  payment  of  [description]. 

This  mortgage  is  also  intended  to  secure,  and  does  hereby  se- 
cure, the  payment  of  all  liens,  encumbrances,  charges  and  the 
counsel  fee  herein  mentioned ;  said  counsel  fee  to  become  payable 
and  be  allowed  if  suit  be  commenced  to  foreclose  this  morteacre : 
and  these  presents  shall  be  void  if  such  payment  be  made,  ac- 
cording to  the  tenor  and  effect  thereof ;  but  in  case  default  be 
made  in  the  payment  of  the  said  principal  or  any  installment  of 
interest  as  provided,  then  the  whole  sum  of  principal  and  interest 
shall  be  due  at  the  option  of  the  said  party  of  the  second  part  or 
assigns :  and  suit  may  be  immediately  brought  and  a  decree  be  had 
to  sell  the  said  premises,  with  all  and  every  of  the  appurtenances, 
or  any  part  thereof,  in  the  manner  prescribed  by  law,  and  out  of 
the  money  arising  from  such  sale,  to  retain  the  said  principal  and 
interest,  although  the  time  for  payment  of  said  principal  sum  may 
not  have  expired,  together  with  the  costs  and  charges  of  making 
such  sale,  and  of  suit  for  foreclosure,  including  counsel  fees  at 
the  rate  of  10  per  cent  upon  the  amoimt  which  may  be  found  to 
be  due  for  principal  and  interest,  by  the  said  decree,  and  also  the 
aaiounts,  both  principal  and  interest,  of  all  such  payments  of  Hens 


3o8  New  Book  of  Forms. 

or  other  encumbrances  as  may  have  been  made  by  said  party  of 
the  second  part,  by  reason  of  the  permissions  hereinafter  given, 
and  tiie  overplus,  if  any  there  be,  shall  be  paid  by  the  party  mak- 
ing  such  sale,  on  demand,  to  the  said  party  of  the  first  part,  }as 
heirs,  executors,  administrators  or  assigns. 

And  it  is  hereby  agreed,  that  the  said  party  of  the  second  part, 
his  heirs,  executors,  administrators  or  assigns,  may  pay  and  dis- 
charge at  maturity  all  liens  or  other  encumbrances  now  subsisting, 
or  hereinafter  to  be  laid  or  imposed  upon  said  lot  of  land  and 
premises,  excepting  for  taxes  and  other  assessments,  levied  or  as- 
sessed upon  this  mortgage,  or  upon  the  money  secured  hereby, 
and  which  may  be  in  effect  a  charge  thereupon,  and  to  insure  and 
keep  insured  the  buildings  now  to  be  erected  on  said  mortgaged 
premises,  for  at  least  the  sum  of  $10,000,  and  to  pay  the  premi- 
ums on  such  insurance,  and  such  payments  shall  be  allowed  with 
mterest  thereon  at  the  rate  of  ten  per  cent  per  year ;  and  such  pay- 
ments, and  interest,  and  the  counsel  fees,  costs  and  other  expendi- 
tures mentioned  in  this  mortgage,  shall  be  considered  as  secured 
by  these  presents,  and  shall  be  a  charge  and  preferred  lien  upon 
said  premises,  and  shall  be  repayable,  in  the  same  kind  of  money 
or  currency  in  which  the  same  may  have  been  paid,  and  may  be 
deducted  from  the  proceeds  of  the  sale  above  authorized. 

No.  426. — Mortgage  of  Land. 

This  Indenture,  made  the  jti  day  of  June,  in  the  year  one 
thousand  nine  hundred  and  five,  between  A.  B.,  the  party  of  the 
hrst  part,  and  C.  D.,  the  party  of  the  second  part,  witnesseth : 
That  whereas,  the  said  party  of  the  first  part,  is  justly  indebted  to 
the  said  party  of  the  second  part,  in  the  sum  of  $10,000  gold  coin 
of  the  United  States  of  America,  secured  to  be  paid  by  a  certain 
promissory  note  bearing  even  date  with  these  presents,  and  which 
said  note  is  in  the  words  and  figures  following,  to  wit:  [Copy  of 
note.] 

Now  this  indenture  witnesseth  that  the  said  party  of  the  first 
part,  for  the  better  securing  the  payment  of  the  said  sum  of  money 
secured,  to  be  paid  by  the  said  promissory  note,  with  interest 
thereon,  according  to  the  true  intent  and  meaning  thereof,  and 
also  for  and  in  consideration  of  the  sum  of  one  dollar,  to  him  in 
hand  paid  by  the  said  party  of  the  second  part,  at  or  before  the 
ensealing  and  delivery  of  these  presents,  the  receipt  whereof  is 
hereby  acknowledged,  ha.y  granted,  bargained,  sold,  conveyed  and 
confirmed,  and  by  these  presents,  do^.f  grant,  bargain,  sell,  convey 
and  confirm,  unto  the  said  party  of  the  second  part,  and  to  his 
heirs  and  assigns  forever,  all  that  certain  lot,  piece  or  parcel  of 
land  situate,  lying  and  being  in  the  city  and  county  of  San  Fran- 
cisco, state  of  California,  and  bounded  and  particularly  described 
as  follows,  to  wit:   [Description.] 


Mortgage.  309 

This  morti:::;Tig-c  is  also  intended  to  secure  and  does  hereby  se- 
nire,  the  payment  of  all  liens,  encumbrances,  charges  and  the 
counsel  fee  herein  mentioned ;  said  counsel  fee  to  become  payable 
and  be  allowed  if  suit  be  commenced  to  foreclose  this  mortgage. 

Together  with  all  and  singular  the  tenements  and  appurtenances 
thereunto  belonging  or  in  any  wise  appertaining,  and  the  rever- 
sion and  reversions,  remainder  and  remainders,  rents,  issues  and 
profits  thereof ;  and,  also,  all  the  estate,  right,  title,  interest,  prop- 
erty, possession,  claim  and  demand  whatsoever,  as  well  in  law  as 
in  equity,  of  the  said  party  of  the  first  part,  of,  in  or  to  the  said 
premises,  and  every  part  and  parcel  thereof,  with  the  appurte- 
nances. 

To  have  and  to  hold,  the  said  premises  with  the  appurtenances 
unto  the  said  party  of  the  second  part,  his  heirs  and  assigns  for- 
ever. 

Provided,  always,  and  these  presents  are  upon  this  express  con- 
dition, that  of  the  said  party  of  the  first  part,  his  heirs,  executors, 
and  administrators,  shall  well  and  truly  pay  or  cause  to  be  paid 
to  the  said  party  of  the  second  part,  his  executors,  administrators 
or  assigns,  the  said  sum  of  money  secured  to  be  paid  by  the  said 
promissory  note,  and  the  interest  thereon,  at  the  time  and  in  the 
manner  mentioned  in  tl:c  said  promissory  note,  according  to  the 
true  intent  and  meaning  thereof,  then,  and  in  that  case,  these 
presents,  and  the  estate  hereby  granted,  shall  cease,  determine 
and  be  void.  And  the  said  party  of  the  first  part,  for  himself  and 
his  heirs,  executors,  and  administrators,  do^^,  hereby  covenant, 
promise  and  agree  to  pay  to  the  said  party  of  the  second  part,  his 
executors,  administrators  or  assigns,  the  said  sum  of  money  and 
interest  as  mentioned  in  said  promissory  note,  and  secured  to  be 
paid  as  aforesaid.  And  if  default  shall  be  made  in  the  pavment 
of  the  said  siun  of  money  or  any  part  thereof,  as  provided  in  said 
note,  or  if  the  interest  that  may  grow  due  thereon,  or  any  part 
thereof,  shall  be  behind  and  unpaid  for  the  space  of  jo  davs  after 
the  same  should  have  been  paid,  according  to  the  terms  of  said 
promissory  note,  then  and  from  thenceforth  it  shall  be  optional 
with  said  party  of  the  second  part,  his  executors,  administrators 
and  assigns,  to  consider  the  whole  of  said  principal  sum  expressed 
in  said  note,  as  immediately  due  and  payable,  although  the  time 
expressed  in  said  note  for  the  payment  thereof  shall  not  have  ar- 
rived, and  immediately  to  enter  into  and  upon  all  and  singular  the 
premises  hereby  granted,  or  intended  so  to  be,  and  to  sell  and  dis- 
pose of  the  same,  and  all  benefit  and  equity  of  redemption  of  the 
said  party  of  the  first  part,  his  heirs,  executors,  administrators,  or 
assigns,  therein  according  to  law,  and  out  of  monev  arising  from 
siich  sale  to  retain  the  principal  and  interest  which  shall  then  be 
due  on  the  said  promissory  note,  together  with  the  costs  and 
charges  of  foreclosure  suit ;  and  also  the  sum  of  $100,  and  a  per- 


310  Nkw  Book  of  Forms. 

ccntage,  at  the  rate  of  5  per  cent  upon  the  amount  of  judgment 
recovered  as  counsel  fees,  or  in  case  the  said  foreclosure  suit  is 
settled  before  judgment  recovered,  the  amount  due  the  plaintiff 
on  said  note,  and  this  mortgage,  and  as  counsel  fees,  and  also  the 
amounts  of  all  such  payments  of  liens,  taxes,  assessments  or  en- 
cumbrances as  may  have  been  made  by  said  part}'  of  the  second 
part,  his  heirs,  executors,  administrators  or  assigns,  by  reason  oi 
the  permission  hereinafter  given  with  the  interest  on  the  same 
hereinafter  allowed,  rendering  the  overplus  of  the  purchase 
money  (if  any  there  shall  be)  unto  the  said  party  of  the  first  part, 
his  heirs,  executors,  administrators  or  assigns.  And  the  said 
party  of  the  first  docs  hereby  further  covenant,  promise  and  agree 
to  and  with  the  said  party  of  the  second  part,  to  pay  and  discharge 
at  maturity  all  such  liens,  taxes  or  assessments,  or  other  encum- 
brances now  subsisting  or  hereafter  to  be  laid  or  imposed  upon 
said  premises,  excepting  for  taxes  or  other  assessments  levied  or 
assessed  upon  this  mortgage,  or  which  may  be  in  effect  a  prior 
charge  thereupon,  during  the  continuance  hereof,  and. in  default 
thereof  the  said  party  of  the  second  part  may  pay  and  discharge 
the  same  and  may  at  option,  keep  fully  insured  against  all  risks 
by  fire,  the  buildings  which  are  now  or  may  be  hereinafter  erected 
thereon  at  the  expense  of  the  said  party  of  the  first  part,  and  the 
sums  so  paid  shall  be  payable  in  the  same  kind  of  money  or  cur- 
rency in  which  the  same  may  have  been  paid,  and  shall  bear  in- 
terest at  the  rate  of  8  per  cent  per  annum,  and  shall  be  considered 
as  secured  by  these  presents,  and  be  a  lien  upon  said  premises, 
and  shall  be  deducted  from  the  proceeds  of  the  sale  thereof,  above 
mentioned,  with  interest  as  herein  provided. 

No.  427. — Mortgage  of  Land— Corporation. 

This  Indenture,  made  the  ^d  day  of  June,  in  the  year  one 
thousand  nine  hundred  and  five,  between  The  A.  B.  C.  D.  Com- 
pany, a  corporation  organized  and  doing  business  under  the  laws 
of  the  state  of  California,  and  having  its  principal  place  of  busi- 
ness at  the  city  of  Marysville,  said  state,  the  party  of  the  first  part, 
and  B.  F.  G.,  the  party  of  the  second  part,  witnesseth :  That  the 
said  party  of  the  first  part,  for  and  in  consideration  of  the  sum  of 
$10,000  gold  coin  of  the  United  States  of  America,  to  it  in  hand 
paid,  the  receipt  whereof  is  hereby  acknowledged,  does  by  these 
presents  grant,  bargain,  sell,  convey  and  confirm  unto  the  said 
party  of  the  second  part,  his  heirs  and  assigns  forever,  all  that 
land,  with  improvements  thereon,  in  the  county  of  Yuba,  state  of 
California,  and  bounded  and  particularly  described  as  follows,  to 
wit:   [Description.] 

Together  with  all  and  singular  the  tenements,  hereditaments, 
and  appurtenances  thereunto  belonging,  and  the  rents,  issues  and 
profits  thereof. 


MORTGACB.  3 1  r 

To  have  and  to  hold,  all  and  singular,  the  said  premises,  to- 
gether with  the  appurtenances,  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns  forever. 

This  conveyance,  however,  is  intended  as  a  mortgage  to  secure 
the  payment  of  ten  thousand  dollars,  which  the  mortgagee  has 
leytt  to  the  mortgagor  upon  its  promissory  note  for  said  amount, 
dated  June  j,  IQO^,  and  payable  jo  days  after  its  date  in  United 
States  gold  coin,  zmth  interest  at  the  rate  of  lo  per  cent  a  year 
until  paid,  and  the  said  interest  to  be  paid  annually  on  the  first 
day  of  June. 

This  mortgage  is  also  intended  to  secure  and  does  hereby 
secure,  the  payment  of  all  liens,  encumbrances,  charges  and  the 
counsel  fee  her(^"n  mentioned ;  said  counsel  fee  to  become  paya- 
ble and  be  allowed  if  suit  be  commenced  to  foreclose  this  mort- 
gage; and  these  presents  shall  be  void  if  such  payment  be  made, 
according  to  the  tenor  and  effect  thereof;  but  in  case  default 
be  made  in  the  payment  of  the  said  principal,  or  any  installment 
of  interest,  as  provided,  then  the  whole  sum  of  principal  and 
interest  shall  be  due  at  the  option  of  the  said  party  of  the  second 
part,  or  assigns ;  and  suit  may  be  immediately  brought  and  a 
decree  be  had  to  sell  the  said  premises-,  with  all  and  every  of  the 
appurtenances,  or  any  part  thereof,  in  the  manner  prescribed 
by  law,  and  out  of  the  money  arising  from  such  sale,  to  retain 
the  said  principal  and  interest,  although  the  time  for  payment 
of  said  principal  sum  may  not  have  expired,  together  with  the 
costs  and  charges  of  making  such  sale,  and  of  suit  for  foreclos- 
ure, including  counsel  fees  at  the  rate  of  20  per  cent  upon  the 
amount  which  may  be  found  to  be  due  for  principal  and  inter- 
est, by  the  said  decree,  and  also  the  amounts  both  principal  and 
interest  of  all  such  payments  of  liens  or  other  encumbrances  as 
may  have  been  made  by  the  said  party  of  the  second  part,  by 
reason  of  the  permission  hereinafter  given,  and  the  overplus,  if 
any  there  be,  shall  be  paid  by  the  party  making  such  sale,  on 
demand,  to  the  said  party  of  the  first  part,  or  assigns. 

And  it  is  hereby  agreed  that  the  said  party  of  the  second  part, 
his  heirs,  executors  or  assigns,  may  pay  and  discharge  at  matur- 
ity all  liens  or  other  encumbrances  now  subsisting  or  hereafter 
to  be  laid  or  imposed  upon  said  lot  of  land  and  premises,  except- 
ing for  taxes  and  other  assessments,  levied  or  assessed  upon  this 
mortgage,  or  upon  the  money  secured  hereby,  and  which  may  be 
in  effect  a  charge  thereupon ;  and  such  payments  shall  be  allowed 
with  interest  thereon  at  the  rate  of  20  per  cent  per  month;  and 
such  payments,  and  interest,  and  the  counsel  fees,  costs,  and 
other  expenditures  mentioned  in  this  mortgage  shall  be  consid- 
ered as  secured  by  these  presents,  and  shall  be  a  charge  and  pre- 
ferred lien  upon  said  premises,  and  shall  be  repayable,  in  the 
same  kind  of  money  or  currency  in  which  the  same  may  have 


312  New  Book  of  Forms. 

boen  paid,  and  may  be  deducted  from  the  proceeds  of  the  sale 
above  authorized. 

No.   428. — Mortgage  of  Land. 

This  mortg-ag^e,  made  the  ?(/  day  of  June,  in  the  year  one  thou- 
sand nine  hundred  and  fiz'e,  by  A.  B.,  of  the  county  of  Contra 
Costa,  state  of  California,  mortgagor,  to  C.  D.,  of  the  same  place, 
mortgagee,  witnesseth :  That  the  said  mortgagor  mortgages  to 
the  said  mortgagee  all  that  certain  piece  and  parcel  of  land  situ- 
ate in  the  county  of  Contra  Costa,  state  of  California,  bounded 
and  described  as  follows,  to  wit:  [Description.]  As  security  for 
the  payment  to  said  mortgagee  of  the  sum  of  $1,200,  in  gold  coin 
of  the  United  States  of  America,  on  the  ^d  day  of  June,  A.  D. 
jpoQ,  with  interest  thereon  at  the  rate  of  6  per  cent  per  year, 
according  to  the  terms  and  conditions  of  a  certain  promissory 
note  of  even  date  with  this  mortgage,  in  words  and  figures  fol- 
lowing, to  wit:  [Copy  of  note.] 

No.  429. — Mortgage  by  Estate  of  Decedent. 

This  mortgage,  made  this  ^th  day  of  June,  igo6,  by  the  estate 
of  C.  D.,  deceased,  mortgagor,  to  M.  D.,  mortgagee,  made  by 
order  of  the  superior  court  of  the  city  and  county  of  San  Fran- 
cisco, state  of  California  (Department  10),  dated  May  J,  igo6, 
bears  witness:  That  said  estate  mortgages  to  said  M.  D.  all  that 
real  estate  and  improvements  thereon  situated  in  the  city  and 
county  of  San  Francisco,  state  of  California,  and  bounded  and 
described  as  follows,  to  wit:   [Description.] 

Said  mortgage  is  made  to  secure  the  sum  of  $io',ooo,  in  gold 
coin  of  the  United  States,  which  sum  is  evidenced  by  the  prom- 
issory note  of  B.  F.  C,  the  executor  of  the  last  will  of  said  C. 
D.,  deceased,  and  in  the  words  and  figures  as  follows,  to  wit: 

San  Francisco,  July  10,  igo6. 

One  year  from  date,  the  estate  of  C.  D.,  deceased,  promises  to 
pay  to  order  of  M.  D.  ten  thousand  dollars,  in  gold  coin  of  the 
United  States,  with  interest  thereon  from  date  at  the  rate  of  six 
per  cent  per  year,  to  be  paid  on  the  first  day  of  each  month  out 
of  the  whole  estate  of  deceased. 

E.  F.  G., 
Executor  of  the  Last  Will  of  C.  D.,  Deceased. 

It  is  covenanted  between  the  mortgagor  and  mortgagee  that 
for  the  further  security  of  said  mortgagee  he  may  cause  the  build- 
ing upon  the  land  described  herein  to  be  insured  and  the  premi- 
ums paid  from  the  income  [of  said  estate]. 

NOTE. — California:  The  note  and  mortgage  shall  be  signed  by  the 
executor,  administrator  or  guardian  as  such,  but  such  signing  docs  not 
create  any  personal  liability  against  the  person  signing.  The  mortgage 
covers  all  the  interest  the  decedent  had  in  the  premises  at  the  time  of 
his  death  and  all  his  estate  thereafter  acauired. 


Mortgage.  3 1 3 

A  ccrtifiod  copy  of  the  order  must  be  recorded  in  the  office  of  the 
eounty  recorder  of  every  county  in  which  the  encumbered  land  or  any 
portion  thereof  lies:  C.  C.  P.,  sec  1578.  See  notes  to  "Petition  to  Mort- 
gage" and  "Order  to  Show  Cause."  This  form  of  mortgage  contains 
everything  necessary  to  constitute  a  binding  obligation  under  the  laws 
of  the  state  of  California. 

Covenants  respecting  "interest  compounding,"  "attorney's  fees," 
"payment  of  taxes,"  "defending  actions,"  discharging  "prior  encum- 
brances," have  no  place  in  such  contracts:  C.  C.  P.,  sees.  1577,  1578; 
Arizona,  C.  C,  par.  1816-1823;  Montana,  C.  C.  P.,  sec.  2641;  North  Da- 
kota, C.  C,  sees.  6454,  6455;  Oregon,  Codes  and  Statutes,  sec.  1195; 
Utah,  Rev.  Stats.,  sees.  3908,  3909;  Washington,  Ballinger's  Codes,  see. 
6265. 

No.  430. — Defeasance — Deed  as  a  Mortgage. 

Whereas,  on  January  j,  ipo6,  A.  B.  granted  to  the  undersie^ned 
all  that  land  situated  in  the  county  of  Kings,  state  of  California, 
bounded  and  described  as  follows,  to  wt:  [Description.]  Now, 
be  it  known,  that  said  g^rant,  though  absolute  on  its  face,  was 
intended  to  be  security  for  the  payment,  by  said  A.  B.  to  me  of 
the  sum  of  $10,000,  with  interest  thereon  at  the  rate  of  seven  per 
cent  per  year  from  January  j,  igo6,  until  paid;  and  I  promise 
that  when  said  amount  and  interest  is  paid  that  I  will  regrant 
said  land  to  said  A.  B.,  or  his  assigns  or  successors,  clear  of  all 
encumbrances  suffered  by  me  [or  any  other  matter  may  he  in- 
serted to  ezidence  the  intention  of  the  parties]. 

NOTE. — If  the  grantor  intends  to  record  the  defeasance,  the  grant 
and  defeasance  will  constitute  a  perfect  mortgage,  and  must  be  acknowl- 
edged or  witnessed  so  that,  if  necessary,  the  witness  may  acknowledge 
it. 


No.  431.— Mortgage  by  Church — Notice  of  Application  to. 
[Title  of  Court  and  Cause.] 

On  reading  the  annexed  petition  of  "The  Trustees  [insert 
name],"  a  religious  corporation,  and  on  motion  of  A.  B.,  in  be- 
half of  said  corporation : 

It  is  ordered  that  said  petition  be  presented,  and  said  applica- 
tion made  to  the  said  superior  court,  at  the  courtroom  thereof, 
at  the  City  Hall,  in  said  city  and  county,  on  Tuesday,  the  tzvenfx- 
sixih  day  of  September,  ipo6,  at  the  opening  of  the  court  on  that 
day,  or  as  soon  thereafter  as  said  application  can  be  heard. 

And  it  is  further  ordered  that  notice  of  said  application  be  pub- 
lished in  the  D.  B.  B.,  a  newspaper  printed  and  published  in  said 
city  and  county,  each  day  for  Hve  days  immediately  preceding  said 
application. 

NOTE. — California,  C.  C,  sec.  598;  Arizona,  C.  C,  par.  894;  Colo- 
rado, Mill's  Stats.,  sees.  659-671;  Idaho,  C,  C,  sec.  2280;  Montana,  C.  C. 


314  New  Book  of"  Forms. 

P.,  sees.  SRO-SS.");  Nevada,  Comp.  Laws,  sec.  894  (reference  to  statutes) 
New  Mexico,  Comp.  Laws,  sec.  426;  North  Dakota,  C.  C,  sees.  2882,  3172 
Oregon.    Codes    and    Statutes,   sec.    5186;    South   Dakota,    C.    C   sec.    757 
■Washington,  Ballinger's   Codes,   sees.   4438-4443;    "Wyoming,   Bev.   Stats^ 
sees.  3238-3245. 

No.   432. — Order — Mortgage — Church  to   Give   Notice, 

[Title  of  Court  and  Cause.] 

In  the  above-entitled  matter,  on  reading  and  filing  the  petition 
of  "T]ic  Trustees  [insert  name],''  and  it  satisfactorily  appearing 
to  the  court  therefrom,  and  the  evidence  adduced  in  support 
thereof,  that  it  will  be  to  the  benefit,  interest  and  advantage  of 
such  church  and  congregation  to  grant  the  prayer  of  said  peti- 
tion, and  it  also  satisfactorily  appearing  to  the  court,  by  compe- 
tent proof,  that  due  notice  of  this  application  has  been  given : 

Now,  therefore,  on  application  of  said  trustees,  by  their  at- 
torney, C.  H.  G.,  it  is  ordered  that  the  said  trustees  may  make, 
execute  and  acknowledge,  under  and  in  the  (corporate)  name 
and  seal  of  said  trustees,  a  mortgage  upon  the  property  described 
in  said  petition  to  secure  the  payment  of  such  sum,  not  exceed- 
ing Hve  thousand  dollars,  as  they  can  obtain. 

And  it  is  further  ordered  that  the  said  corporation  do  execute 
and  deliver  with  such  mortgage  a  promissory  note  for  such 
amount  as  aforesaid,  under  the  corporate  name  of  such  trustees. 

And  it  is  further  ordered  that  said  trustees,  on  receiving  said 
sum  of  money  as  aforesaid,  shall  appropriate  the  same,  or  so 
much  thereof  as  may  be  necessary  for  that  purpose,  to  the  pay- 
ment of  the  present  indebtedness  of  said  corporation  and  church ; 
and  if  any  balance  remain  after  the  payment  of  such  debts,  it 
shall  be  used,  under  the  direction  of  said  trustees,  for  the  ben- 
efit of  said  church. 

NOTE. — California,  C.  C,  sec.  598;  Arizona,  C.  C^  par  894;  Colorado, 
MiU's  Stats.,  sees.  671,  679;  Idaho,  C.  C.  P.,  sec.  2280;  Montana,  C.  C.  P., 
sees.  860-865;  Nevada,  Comp.  Laws,  sec.  894  (reference  to  statutes);  New 
Mexico,  Comp.  Laws,:  sec.  426;  North  Dakota,  C.  C,  sees.  2882,  3172; 
Oregon,  Codes  and  Statutes,  see.  5186;  South  Dakota,  C.  C,  sec.  757; 
"Washington,  Ballinger's  Codes,  sees.  4438-4443;  ■Wyoming,  Bev.  Stats., 
sees.  a238-3245. 


Patents— Forms  Prescribed  by  the  Patent  Office.     315 


PATENTS— FOI^MS  PRESCRIBED    BY    THE 
PATENT  OFFICE. 


No.   433. — Petition   by   a    Sole   Inventor. 
To  the  Commissioner  of  Patents: 

Your  petitioner,  a  citizen  of  the  United  States,  prays  that  let- 
ters patent  may  be  panted  to  him  for  the  invention  set  forth  in 
the  annexed  specification. 


No.  434. — Petition  by  Joint  Inventors. 

To  the  Commissioner  of  Patents: 

Your  petitioners  pray  that  letters  patent  may  be  g-ranted  to 
them,  as  joint  inventors,  for  the  invention  set  forth  in  the  an- 
nexed specification 


No.  435. — Petition  by  an  Inventor,  for  an  Assignee. 

To  the  Commissioner  of  Patents : 

Your  petitioner  prays  that  letters  patent  may  be  g-ranted  to 
A.  B..  as  his  assignee,  for  the  invention  set  forth  in  the  annexed 
specification 


No.  436. — Petition  by  an  Administrator. 

To  the  Commissioner  of  Patents : 

Your  petitioner,  A.  B.,  administrator  of  the  estate  of  C.  D.,  de- 
ceased (as  by  reference  to  the  duly  certified  copy  of  letters  of  ad- 
ministration, hereto  annexed,  will  more  fully  appear),  prays 
that  letters  patent  may  be  granted  to  him  for  the  invention  of 
the  said  C.  D.,  set  forth  in  the  annexed  specification 


No.  437. — Petition  by  an  Executor. 

To  the  Commissioner  of  Patents: 

Your  petitioner,  A.  B.,  executor  of  the  last  will  and  testament 
of  C.  D.,  deceased  (as  by  reference  to  the  duly  certified  copy  of 
letters  testamentary,  hereto  annexed,  will  more  fully  appear), 
prays  that  letters  patent  may  be  granted  to  him  for  the  invention 
of  the  said  C.  D.,  set  forth  in  the  annexed  specification 


;i6  New  Book  of  Forms. 


No.  438. — Petition  for  a  Reissue  (by  the  Inventor.) 

To  the  Commissioner  of  Patents: 

Your  petitioner  prays  that  he  may  be  allowed  to  surrender  the 
letters  patent  for  an  improvement  in  coal  scuttles,  granted  to  hira 
June  ?,  iQOji,  whereof  he  is  now  sole  owner  [or,  whereof  R.  G., 
on  whose  behalf  and  with  whose  consent  this  application  is  made, 
is  now  sole  owner,  by  assignment],  and  that  letters  patent  may 
be  reissued  to  him  for  the  same  invention,  upon  the  annexed 
amended  specification. 

No.  439. — Petition  for  Letters  Patent  for  a  Design. 

To  the  Commissioner  of  Patents : 

Your  petitioner  prays  that  letters  patent  may  be  granted  to  him 
for  the  new  and  original  design  set  forth  in  the  annexed  amended 
specification. 

No.  440. — Power  of  Attorney. 

To  the  Commissioner  of  Patents : 

The  undersigned  having,  on  or  about  the  5J  day  of  June,  iQOj, 
made  application  for  letters  patent  for  an  improvement  in  a  horse- 
power, hereby  appoints  0.  L.,  of  the  city  of  Oakland,  his  attor- 
ney, with  full  power  of  substitution  and  revocation,  to  prosecute 
said  application,  to  make  alterations  and  amendments  therein,  to 
receive  the  patent,  and  to  transact  all  business  in  the  patent  office 
connected  therewith. 

No.  441. — Specifications  for  a  Machine. 

I,  A.  B.,  of  0.  K.,  in  the  county  of  A.,  and  state  of  C,  have 
invented  certain  improvements  in  planing  machines,  of  which 
the  following  is  a  specification : 

The  first  part  of  my  invention  relates  to  the  combination  of 
rotary  cutters  and  feeding-rollers,  in  such  a  manner  that  the 
said  feeding-rollers  shall  be  capable  of  feeding  the  lumber  to  the 
cutters,  and  also  of  effectually  resisting  of  the  board,  and  pre- 
vents its  being  raised  by  the  action  of  the  cutters  B  B.  When 
the  lumber  is  designed  for  floors  or  ceilings,  or  other  purpose 
for  which  it  is  required  to  be  matched,  a  tongue  is  formed  upon 
one  edge  of  it,  and  a  groove  in  the  other,  by  the  cutters  L  and  M, 
which  both  revolve  toward  the  advancing  board ;  and  these  oper- 
ations are  performed  at  the  same  time  that  the  upper  surface 
of  the  board  is  planed,  the  whole  being  done  at  a  single  operation. 
When  the  lumber  is  required  to  be  matched,  it  should  be  first 
reduced  to  a  uniform  width,  and  guided  into  its  introduction  into 
the  machine  by  a  gauge  P  attached  to  the  bed  Q  of  the  machine. 


Patents — Forms  PREscRmr.n  t.y  the  Patent  Office.     317 

WHicn  the  lumber  is  not  to  be  matched,  this  f^auge  and  the  cutters 
L  and  M  should  be  taken  off  and  dispensed  with. 
I  claim  as  my  invention — 

1.  The  combination  of  the  cutters  E  E  and  the  feeding  rollers 
I  I  and  /  J,  substantially  as  and  for  the  purpose  hereinbefore  set 
forth. 

2.  The  combination  with  the  cutters  E  E  and  feeding  rollers 
I  I  and  /  /,  of  the  cutters  L  and  M,  substantially  as  and  for 
the  purposes  hereinbefore  set  forth. 

[Two  witnesses.] 

No.  442. — Specification  for  a  Process. 

We,  A.  B.,  of  0.  K.,  county  of  A.,  and  state  of  C,  and  C.  D., 
of  O.  K.,  county  of  A.,  and  state  of  C,  have  invented  a  certain 
process  for  separating  smut,  and  all  impurities,  from  wheat,  of 
which  the  following  is  a  specification : 

Take  of  lime,  newly  slacked,  and  while  yet  warm,  one  and  a 
half  pounds  to  each  one  hundred  pounds  of  wheat.  Mix  the 
lime  well  with  the  wheat,  let  it  stand  one  hour,  then  pass  it 
through  a  smut-mill  in  the  usual  way,  and  it  will  be  found  that 
all  the  lime,  smut,  dirt  and  other  im])urities,  attached  to  the  wheat, 
of  every  kind,  and  which  no  smut-mill,  without  my  liming  pro- 
cess, will  fully  separate,  will  be  entirely  removed,  and  the  flour 
will  be  as  white  and  as  sweet  as  though  made  from  the  best  of 
wheat. 

We  do  not  claim  the  smut-mill,  or  any  improvement  thereon, 
or  any  new  chemical  quality  of  lime. 

We  claim  as  our  invention  the  process  of  applying  lime,  when 
newly  slacked  and  warm,  to  wheat,  before  passing  the  latter 
through  a  smut-mill,  so  as  to  cleanse  the  wheat  from  all  impur- 
ities, substantially  as  described. 

[Two  witnesses.] 

No.  443. — Specification  for  a  Composition  of  Matter. 

O.  P.,  deceased,  late  of  A.,  in  the  district  of  X.,  and  state  of  C, 
during  his  lifetime  invented  a  certain  compound  called  ''wool 
oil,"  to  be  used  instead  of  lard,  rape-seed,  or  other  oils,  in  the 
manufacture  of  wool. 

The  nature  of  the  invention  of  the  said  0.  P.  consists  in  mix- 
ing olive,  lard,  or  rape-seed  oil  witli  a  solution  of  oil  of  soap  dis- 
solved in  hot  water. 

To  prepare  the  wool  oil,  take  a  quantity  of  oil  soap  of  any 
kind,  provided  the  quality  be  good,  and  dissolve  the  same  in  hot 
water,  say  about  tliirty  pounds  of  oU  soap  to  thirty  gallons  of 
xvater,  or  a  sufficient  quantity  of  soap  to  saturate  the  water. 
Then  take  equal  parts  by  measure,  of  olive,  lard,  rape-seed,  or 
any  other  kind  of  oil  which  can  be  used  on  wool  in  the  process 


3i8  New  Book  of  Forms. 

of  its  manufacture,  and  mix  it  with  the  preparation  aforesaid,  to 
wit,  the  soap  solution,  which,  after  such  mixture,  is  ready  to  be 
used  on  the  wool  with  as  beneficial  an  effect  as  if  pure  oil  only 
had  been  used.  This  wool  oil  will  not  decompose  by  age,  be- 
cause the  oil  of  soap  neutralizes  the  stearine  in  the  oil;  hence 
there  is  nothing  to  decompose.  And  for  the  same  reason  spon- 
taneous combustion  cannot  be  produced. 

I  claim  as  the  invention  of  the  said  O.  P.  the  manufacture  or 
preparation  of  a  compound,  which  is  denominated  wool  oil,  of 
the  ingredients,  in  the  proportions,  and  for  the  purposes  set  forth. 

[Two  witnesses.] 

No.  444. — Specification  for  a  Design. 

I,  A.  B.,  of  O.  K.,  in  the  county  of  A.,  and  state  of  C,  have  in- 
vented and  produced  a  new  and  original  design  for  carpets,  of 
which  the  following  is  a  specification : 

The  nature  of.  my  design  is  fully  represented  in  the  accom- 
panying photographic  illustration,  to  which  reference  is  made. 

I  claim  as  my  invention  the  design  for  a  carpet,  as  shown. 

[Two  witnesses.] 

[If  the  applicant  be  an  alien,  the  sentence  in  form  No.  433, 
"that  he  is  a  citizen  of  the  United  States"  will  be  omitted,  and 
in  lieu  thereof  will  be  substituted  "and  that  he  is  a  citizen  of  the 
Republic  of  Mexico,"  or,  "and  that  he  is  a  subject  of  the  King  of 
Italy,"  or  "of  the  Queen  of  Great  Britain,"  or  as  the  case  may  be. 
If  the  applicants  claim  to  be  joint  inventors,  the  oath  will  read 
"that  they  verily  believe  themselves  to  be  the  original,  first,  and 
joint  inventors,"  etc.] 

No.  445. — Oath  by  an  Applicant  for  a  Reissue  (Inventor). 

State  of  C, 

City  and  County  of ,  ss. 

A.  B.,  the  above-named  petitioner,  being  duly  sworn  [or  af- 
firmed], deposes  and  says  that  he  verily  believes  that,  by  reason 
of  an  insufficient  and  defective  specification,  his  aforesaid  letters 
patent  are  inoperative  and  invalid ;  that  the  said  error  has  arisen 
from  inadvertence,  accident  or  mistake,  and  without  any  fraudu- 
lent or  deceptive  intention,  to  the  best  of  his  knowledge  or  be- 
lief; that  he  is  the  sole  owner  of  said  letters  patent  [or,  "that 
M.  N.  is  the  sole  owner  of  said  letters  patent,  and  that  this  ap- 
plication is  made  on  the  behalf  and  with  the  consent  of  the  said 
M.  N."]  ;  and  that  he  verily  believes  himself  to  be  the  first  and 
original  inventor  of  the  improvement  set  forth  in  this  amended 
specification. 


Patents — Forms  Prescribed  by  the  Patent  Office.     319 

No.  446. — Caveat. 

The  petition  of  A.  B.,  of  O.  K.,  in  the  county  of  A.,  and  state 
oi  C,  respectfully  represents  that  he  has  made  certain  improve- 
ments in  velocipedes,  and  that  he  is  now  engaged  in  making  ex- 
periments for  the  purpose  of  perfecting  the  same,  preparatory  to 
applying  for  letters  patent  therefor.  He,  therefore,  prays  that 
the  subjoined  description  of  his  invention  may  be  filed  as  a  caveat 
in  the  confidential  arcliives  of  the  patent  office. 

No.  447. — Specification. 

The  follow^ing  is  a  description  of  my  newly  invented  bicycle, 
which  is  as  full,  clear,  and  exact  as  I  am  able  at  this  time  to  give, 
reference  being  had  to  the  drawing  hereto  annexed.  This  inven- 
tion relates  to  that  class  of  bicycle  in  which  there  are  two  wheels 
connected  by  a  beam,  forming  a  saddle  for  the  rider,  the  feet 
being  applied  to  cranks  that  revolve  the  front  wheel.  The  ob- 
ject of  my  invention  is  to  render  it  unnecessary  to  turn  the  front 
wheel  as  much  as  heretofore,  and  at  the  same  time  to  facilitate 
the  turning  of  sharp  curves.  This  I  accomplish  by  fitting  the 
front  and  the  hind  wheels  on  vertical  pivots,  and  connecting  them 
by  means  of  a  diagonal  bar,  as  shown  in  the  drawing,  so  that 
the  turning  of  the  front  wheel  also  turns  the  back  wheel  with  a 
position  at  an  angle  with  the  beams,  thereby  enabling  it  easilv 
to  turn  a  curve.  In  the  drawing  A  is  the  front  wheel,  B  the 
hind  wheel,  and  C  the  standards  extending  from  the  axle  of  the 
front  wheel  to  the  vertical  pivot  a  in  the  beam  b,  and  D  is  the 
cross-bar  upon  the  end  of  a,  by  which  the  steering  is  done.  The 
hind  wheel  B  is  also  fitted  with  jaws  c  and  a  vertical  pivot  d. 

[Two  witnesses.] 

NOTE. — The  form  of  oath  will  be  substantially  that  provided  for 
original  applicants,  except  that,  as  a  caveat  can  only  be  filed  by  a 
citizen,  or  an  alien  who  has  resided  for  one  year  last  past  in  the  United 
States,  and  made  oath  of  his  intention  to  become  a  citizen,  the  oath 
should  be  modified  accordingly. 

No.  448. — Assignment  of  the  Entire  Interest  in  an  Invention 
Before  the  Issue  of  Letters  Patent. 

In  consideration  of  one  dollar  to  me  paid  by  A.  B.,  of  O.  K.,  I 
do  hereby  sell  and  assign  to  said  A.  B.  all  my  right,  title  and  in- 
terest in  and  to  a  certain  invention  in  plozvs,  as  fully  set  forth 
and  described  in  the  specifications  which  I  have  prepared  [if  the 
application  has  been  already  made,  say  "and  filed"]  preparatory 
to  obtaining  letters  patent  of  the  United  States  therefor.  And 
I  do  hereby  authorize  and  request  the  commissioner  of  patents 
to  issue  the  said  letters  patent  to  the  said  A.  B.,  as  my  assignee, 
for  the  sole  use  and  behoof  of  the  said  A.  B.,  and  his  legal  rep- 
resentatives. 


320  New  Book  of  Forms. 


No.  449. — Of  the  Entire  Interest  in  Letters  Patent. 

In  consideration  of  fiz'c  hundred  dollars  to  me  paid  by  A.  B., 
of  O.  K.,  I  do  hereby  sell  and  assigri  to  the  said  A.  B.  all  my 
rig-ht,  title  and  interest  in  and  to  the  letters  patent  of  the  United 
States  No.  loo.yd?,  for  an  improvement  in  locomotive  head- 
lights, granted  to  me  the  ^d  day  of  June,  1905,  the  same  to  be 
held  and  enjoyed  by  the  said  A.  B.  to  the  full  end  of  the  term  for 
which  said  letters  are  granted,  as  fully  and  entirely  as  the  same 
would  have  been  held  and  enjoyed  by  me  if  this  assignment  and 
sale  had  not  been  made. 

No.  450. — Of  an  Undivided  Interest  in  the  Letters  Patent  and 
Extension  Thereof. 

In  consideration  of  one  thousand  dollars  to  me  paid  by  A.  B., 
of  O.  K.,  I  do  hereby  sell  and  assign  to  the  said  A.  B.  one  un- 
divided one-half  part  of  all  my  right,  title,  and  interest  in  and 
to  the  letters  patent  of  the  United  States  No.  1^6,3/2,  for  an 
improvement  in  cooking-stoves,  granted  to  me  June  5,  1903,  the 
same  to  be  held  and  enjoyed  by  the  said  A.  B.,  to  the  full  end 
of  the  term  for  which  said  letters  patent  are  granted,  and  for 
the  terms  of  any  extension  thereof,  as  fully  and  entirely  as  the 
same  would  have  been  held  and  enjoyed  by  me  if  this  assign- 
ment and  sale  had  not  been  made. 

No.  451. — Exclusive  Territorial  Grant  by  an  Assignee. 

In  consideration  of  one  thousand  dollars  to  me  paid  by  A.  B., 
of  0.  K.,  I  do  hereby  grant  and  convey  to  the  said  A.  B.  the 
exclusive  right  to  make,  use,  and  vend  within  the  state  of  C, 
and  the  counties  of  S.  and  M.,  in  the  state  of  C,  and  in  no  other 
place  or  places,  the  improvement  in  corn  planters  for  which  let- 
ters patent  of  the  United  States,  dated  June  j,  1905,  were  granted 
to  C.  D.,  and  by  said  C.  D.  assigned  to  me  June  5,  190J,  by  an 
assignment  duly  recorded  in  liber  X,  p.  jp/,  of  the  records  of  the 
patent  ofhce,  the  same  to  be  held  and  enjoyed  by  the  said  A.  B. 
as  fully  and  entirely  as  the  same  would  have  been  held  and  en- 
joyed by  me  if  this  grant  had  not  been  made. 

No.  452. — License — Shop  Right. 

In  consideration  of  ten  dollars  to  be  paid  by  the  firm  of  A.  B. 
&  Co.,  of  O.  K.,  I  do  hereby  license  and  empower  the  said  A.  B. 
&  Co.  to  manufacture,  at  a  single  foundry  and  machine-shop  in 
said  O.  K.,  and  in  no  other  place  or  places,  the  improvement  in 
cotton-seed  planters,  for  which  letters  patent  of  the  United  States, 
No.  892, "/GO.  were  granted  to  me  June  j,  1905,  and  to  sell  the 


Patents — Forms  PrivScrip.f.d  by  the  Patent  Office.     321 

machines  so  manufactured  throughout  the  United  States,  to  the 
full  end  of  the  term  for  which  said  letters  are  granted. 

No.    453. — License — Not    Exclusive — With    Royalty. 

This  agreement,  made  this  ^d  day  of  June,  1905,  between  A. 
B.,  party  of  the  first  part,  and  C.  D.,  party  of  the  second  part, 
witnesseth :  That  whereas  letters  patent  of  the  United  States  for 
an  improvement  in  horse  rakes  were  granted  to  the  party  of  the 
first  part,  dated  June  s>  1904;  and  whereas  the  party  of  the  sec- 
ond part  is  desirous  of  manufacturing  horse  rakes  containing 
said  patented  improvement ;  now,  therefore,  the  parties  have 
agreed  as  follows:  I.  The  party  of  the  first  part  hereby  licenses 
and  empowers  the  party  of  the  second  part  to  manufacture,  sub- 
ject to  the  conditions  hereinafter  named,  at  their  factory  in  O. 
/<".,  and  in  no  other  place  or  places,  to  the  end  of  the  term  for 
which  said  letters  patent  were  granted,  horse  rakes  containing 
the  patented  improvements,  and  to  sell  the  same  within  the 
United  States.  II.  The  party  of  the  second  part  agrees  to  make 
full  and  true  returns  to  the  party  of  the  first  part,  under  oath, 
upon  the  jrf  days  of  June  and  January  in  each  year,  of  all  horse 
rakes  containing  the  patented  improvements  manufactured  by 
them.  III.  The  party  of  the  second  part  agrees  to  pay  to  the 
party  of  the  first  part  five  dollars,  as  a  license  fee  upon  every 
horse  rake  manufactured  by  said  party  of  the  second  part,  con- 
taining the  patented  improvements ;  provided  that,  if  the  said 
fee  be  paid  upon  the  days  provided  herein  for  semi-annual  re- 
turns, or  within  ten  days  thereafter,  a  discount  of  fifty  per  cent 
shall  be  made  from  said  fee  for  prompt  payment.  IV.  Upon 
failure  of  the  party  of  the  second  part  to  make  returns,  or  to 
make  payment  of  license  fees,  as  herein  provided,  for  thirty  days 
after  the  days  herein  named,  the  party  of  the  first  part  may  ter- 
minate this  license  by  serving  a  written  notice  upon  the  party 
of  the  second  part;  but  the  party  of  the  second  part  shall  not 
thereby  be  discharged  from  any  liability  to  the  party  of  the  first 
part  for  any  license  fees  due  at  the  time  of  the  service  of  said 
notice. 

No.  454. — Transfer  of  a  Trademark. 

We,  A.  B.  and  C.  D.,  of  O.,  partners  under  the  firm  name  of 
A.  B.  &  Co.,  in  consideration  of  one  dollar,  to  us  paid  by  E.  F., 
of  the  same  place,  do  hereby,  assign,  and  transfer  to  the  said 
£.  F.  and  his  assigns  the  exclusive  right  to  use  in  the  manufac- 
ture and  sale  of  stoves  a  certain  trademark  for  stoves  deposited 
by  us  in  the  United  States  patent  office,  and  recorded  therein 
June  s,  1903:  the  same  to  be  held,  enjoyed  and  used  by  the  said 
E.  F.  as  fully  and  entirely  as  the  same  would  have  been  held 
and  enjoyed  by  us  if  this  grant  had  not  been  made. 
Now  Forms — 21 


New  Book  oi^  Forms. 


No.  455. — Assignment  cf  a  Patent — Long  Form. 

Whereas,  letters  patent,  bearing  date  the  first  day  of  March, 
in  the  year  IQO^,  were  granted  and  issued  by  the  government 
of  the  United  States,  under  the  seal  thereof,  to  A.  B.,  of  the 
Idwn  of  Grass  Valley,  in  the  county  of  Nevada,  state  of  Califor- 
nia, for  [here  state  the  nature  of  the  invention  in  general  terms, 
as  in  the  patent],  a  more  particular  and  full  description  whereof 
is  annexed  to  the  said  letters  patent  in  a  schedule ;  by  which  let- 
ters patent,  the  full  and  exclusive  right  and  liberty  of  making 
and  using  the  said  invention,  and  of  vending  the  same  to  others 
to  be  used,  was  granted  to  the  said  A.  B.,  his  heirs,  executors, 
administrators,  and  assigns  for  the  term  of  fourteen  years  from 
the  said  date: 

Now,  know  all  men  by  these  presents :  That  I,  the  said  A.  B., 
for  and  in  consideration  of  the  sum  of  one  thousand  dollars,  gold 
coin  of  the  United  States,  to  me  in  hand  paid,  the  receipt  whereof 
is  hereby  acknowledged,  do  by  these  presents  grant,  assign,  and 
set  over  unto  C.  D.,  of  the  town  of  Dozvnie^c'illc,  in  the  county  of 
Sierra,  state  of  California,  his  executors,  administrators,  and  as- 
signs forever,  the  said  letters  patent,  and  all  my  right,  title,  and 
interest  in  and  to  the  said  invention  so  granted  unto  me. 

To  have  and  to  hold  the  said  letters  patent  and  invention,  with 
all  benefit,  profit,  and  advantage  thereof,  unto  the  said  C.  D.,  his 
executors,  administrators,  and  assigns,  in  as  full,  ample,  and  ben- 
eficial a  manner,  to  all  intents  and  purposes,  as  I,  the  said  A.  B., 
by  virtue  of  the  said  letters  patent,  may  or  might  have  or  hold 
the  same,  if  this  assignment  had  not  been  made,  for  and  during 
all  the  rest  and  residue  of  the  said  term  of  fourteen  years. 

NOTE. — Assignments  of  patents  must  be  in  writing,  but  no  precise 
form  is  provided  by  law;  and  it  must  be  recorded  in  the  United  State* 
Patent  Office  within  three  months  after  execution. 


No.  456. — Assignment. 

OP  AN  UNDIVIDED  FRACTIONAL,  INTEREST  IN  AN  INVENTION  BEEORB 
THE    ISSUE    OP   LETTERS    PATENT. 

In  consideration  of  one  dollar,  to  me  paid  by  C.  D.,  of,  etc., 
I  do  hereby  sell  and  assign  to  said  C.  D.  an  undivided  half  of 
all  my  right,  title,  and  interest  in  and  to  a  certain  invention  in 
plozvs,  as  fully  set  forth  and  described  in  the  specification  which 
I  have  prepared  [if  the  application  has  been  already  made,  say 
"and  filed"]  preparatory  to  obtaining  letters  patent  of  the  United 
States  therefor.  And  I  do  hereby  authorize  and  request  the 
Commissioner  of  Patents  to  issue  the  said  letters  patent  jointly 
to  myself  and  the  said  C.  D.,  our  heirs  and  assigns. 


Pledgb.  323 

PLEDGK 


No.  457. — Pledge  with  Note  Secured 
$3^5^^ — No.  2,824.  San  Francisco,  October  zj,  190^. 

Tzventy  days  after  date,  without  grace,  for  value  received,  in 
gold  coin  of  the  United  States  of  America,  we  jointly  and  sever- 
ally promise  to  pay  to  the  order  of  B.  &  B.,  at  their  office  in  this 
city,  the  sum  of  thirty-five  hundred  dollars,  with  interest  thereon 
from  date  until  paid,  at  the  rate  of  one  and  one-half  per  cent 
per  month,  payable  monthly;  the  said  interest,  if  not  so  paid,  to 
become  part  of  the  principal,  and  bear  the  san>e  rate  of  interest 
as  above  specified.  And  for  further  value  received,  we  hereby 
agree  and  bind  ourselves  to  pay  said  principal  and  interest  in 
gold  coin  of  the  United  States  of  America,  waiving  any  legnl 
right  which  we  now  have,  or  may  hereafter  have,  to  pay  the 
same  in  any  other  money  or  currency. 

/.  D. 
J.  S. 

We  hereby  transfer  and  deposit  with  B.  &  B.,  as  collateral 
security  for  the  payment  of  the  above  promissory  note,. and  the 
interest  and  expenses  which  may  accrue  thereon,  the  following 
personal  property,  of  which  we  are  the  sole  owners,  the  same 
being  at  our  risk  and  expense,  to  wit :  Fifty  shares  O.  S.  M.  Com- 
pany's stock;  fifty  shares  G.  &  C.  S.  M.  Company's  stock;  fifty 
shares  O.  S.  M.  Company's  stock;  fifty  shares  B.  I.  M.  Com- 
pany's stock. 

Also,  a  further  lien  on  any  and  all  collaterals  of  any  and  all 
our  notes  in  their  favor,  and  such  other  and  further  collaterals 
as  we  may  give  them  hereafter. 

In  case  of  nonpayment  of  said  promissory  note,  or  the  inter- 
est thereon,  when  due,  we  hereby  appoint  and  constitute  said  B. 
&  B.,  their  heirs  and  assigns,  our  attorneys  irrevocable,  with 
power  of  substitution,  to  sell  at  any  time  after  said  note  or 
interest  is  due,  with  or  without  notice,  at  the  option  of  said  B.  & 
D.,  the  whole  or  any  part  of  said  security,  either  at  public  or 
private  sale,  at  their  discretion,  and  deliver  the  same  to  the 
purchaser  or  purchasers  thereof;  and  the  proceeds  to  be  applied 
to  the  payment  of  the  above  promissory  note,  interest  due,  ex- 
penses of  such  sale,  all  law  expenses,  counsel  fees,  fees  for  ad- 
vice of  counsel,  or  costs  incurred  or  paid  by  the  said  B.  & 
B.  in  respect  of  said  note  or  said  security,  together  with  one 
per  cent  commission  on  sales ;  and  any  surplus  after  payment  of 
said  note,  interest,  commissions  and  expenses,  to  be  subject  to 
our  order,  except    that  if  the  said  B.  &  B.  shall,  at  the  time  of 


324  New  Book  of  Forms. 

such  sale,  hold  any  other  of  our  obligations,  they  may  apply 
such  surplus  toward  the  payment  of  any  of  such  obligations. 
In  like  manner,  we  agree  to  pay,  on  demand,  to  said  B.  &  B., 
their  heirs  or  assigns,  whatever  deficit  may  result  after  ap- 
plying the  net  proceeds  of  such  sale  to  the  payment  of  said  prin- 
cipal and  interest,  costs,  and  expenses,  as  above. 

In  case  of  deterioration  of  any  of  the  above  securities,  or  fall 
in  the  market  value  of  the  same,  we  hereby  promise  and  agree 
to  reduce  the  amount  of  debt,  or  to  increase  the  security  in  pro- 
portion to  such  deterioration,  or  decrease  of  value,  in  default  of 
which  this  note  is  to  be  considered  immediately  due  under  the 
above  stipulation. 

On  the  payment  of  the  above  note  and  interest,  according  to 
the  terms  of  the  former,  and  all  charges,  this  agreement  to  be 
void,  and  the  above-named  securities  to  be  returned  to  us,  or 
our  order,  or  assigns.  Should  any  such  sale  be  made,  B.  &  B., 
or  their  assigns,  directly,  or  in  the  name  of  any  other  person, 
shall  have  the  right  to  purchase. 

Pledge. — When  the  possession  of  personal  property  is  delivered  to  a 
person  who  lends  money  to  the  owner  and  agrees  to  hold  the  property 
as  security  for  the  amount  loaned,  the  transaction  is  a  pledge.  The 
lendor's  lien  depends  upon  his  possession,  or  the  possession  of  a  pledge- 
holder selected  by  the  parties. 

One  who  has  a  lien  upon  property  may  pledge  it  to  the  extent  of 
his  lien.     The  increase  of  property  pledged  goes  with  it. 

One  may  pledge  his  property  to  secure  the  debt  of  another;  and  if  he 
receives  from  the  pledgor  a  consideration  for  his  risk,  he  cannot  with- 
draw it  without  the  consent  of  all  parties.  Where  a  debtor  has  obtained 
credit,  or  an  extension  of  time,  by  a  fraudulent  misrepresentation,  the 
creditor  may  demand  a  further  pledge;  and  in  default  thereof  may  re- 
cover his  debt  though  it  be  not  due. 

AVhen  a  pledge  is  due,  the  pledgee  may  collect  what  is  due  by  sale. 
Before  it  can  be  sold,  and  after  performance  of  the  act  for  which 
the  security  is  due,  the  pledgee  must  demand  performance,  if  the  debtor 
can  be  found. 

He  must  give  actual  notice  to  the  pledgor  of  the  time  and  place  of 
sale  at  such  a  reasonable  time   as  will  enable  the  pledgor  to  attend. 

Notice  of  sale  may  be  waived,  but  is  not  waived  by  a  mere  waiver  of 
demand   of   performance. 

A  demand  of  performance  as  a  condition  precedent  to  a  sale  is  waived 
by  a  positive  refusal  by  the  pledgor  to  perform,  after  performance,  is 
due;  but  he  cannot  waive  it  m  any  other  manner  except  by  contract. 

The  sale  must  be  made  by  public  auction,  in  the  manner  and  upon  the 
notice  usual  at  the  place  of  sale,  in  respect  to  auction  sales  of  similar 
property,  and  must  be  for  the  highest  obtainable  price. 

A  pledgee  cannot  sell  evidence  of  debt  pledged,  except  the  obligations 
of  governments,  states,  or  corporations,  but  he  may  collect  the  same  when 
due. 

Whenever  property  pledged  can  be  sold  for  a  price  sufficient  to  satisfy 
the  claim  of  the  pledgee,  the  pledgor  may  require  it  to  be  sold,  and  its 
proceeds  to  be  applied  to  such  satisfaction,  when   due. 

After  a  sale  or  collection  the  pledgee  may  deduct  the  amount  due, 
and  the  necessary  expenses  of  sale  and  collection,  and  pay  the  surplus 
to  the  pledgor,  on  demand. 


Pledge.  325 

Wlirn  property  pledged  is  sold  by  order  of  the  pkdfjor  before  the 
claim  of  the  pledgee  is  due,  he  may  retain  enough  of  the  proceeds  to 
satisfy  all  that  possibly  become  due.  The  pledgee  may  bid  in  the 
property  if  the  sale  is  by  auction.  If  there  is  no  auction,  he  may  sell 
the  pledgee's  right  of  redemption  after  he  obtains  a  court's  order  of 
sale.  The  court  maj'  or  may  not  authorize  the  pledgee  to  j^rchase  at 
such  sale:  C.  C^  sees.  2986-3011. 

No.  458. — Pledge  with  Note  and  Security. 

^7,000.  San  Francisco,  September  75,  7905. 

Sixty  (60)  days  after  date,  without  grace,  I  promise  to  pay, 
in  gold  coin  of  the  United  States  of  America,  to  the  order  of 
R.  R.,  at  the  banking-house  of  A.  B.  &  Co.,  in  this  city,  the  sum 
of  one  thousand  (1,000)  dollars,  with  interest  thereon  from  date 
until  paid,  at  the  rate  of  one  and  one-half  per  cent  per  month, 
the  interest  payable  monthly  in  advance;  and  if  not  so  paid,  to 
be  compounded  and  become  a  part  of  the  principal,  and  bear 
thereafter  the  same  rate  of  interest,  for  value  received. 

Due  February  14,  Jpoj. 

As  collateral  security  for  the  payment  of  the  above  note  and 
the  interest  to  grow  due  thereon,  I  have  deposited  with  said  A.  B. 
&  Co.  the  following  personal  property,  to  wit:    [Description.] 

And  should  the  said  note  or  any  part  thereof,  or  the  interest 
to  grow  due  thereon,  remain  due  and  unpaid,  after  the  same 
should  have  been  paid,  according  to  the  tenor  of  said  note,  I 
hereby  irrevocably  authorize  and  empower  A.  B.  &  Co.,  or  their 
heirs,  executors,  administrators,  or  assigns,  to  sell  and  dispose 
of  the  above-mentioned  personal  property,  or  any  part  thereof, 
at  public  or  private  sale,  without  any  previous  notice  to  me  of 
any  such  sale,  and  from  the  proceeds  arising  therefrom  to  pay 
the  principal  and  interest,  and  all  charges  that  shall  be  then 
due,  and  the  costs  of  sale,  and  the  balance,  if  any,  to  pay  over 
to  me  or  my  representatives  upon  demand.  In  case  of  deteri- 
oration of  any  of  the  above  securities,  or  fall  in  the  market  value 
of  the  same,  I  hereby  promise  and  agree  to  reduce  the  amount 
of  debt,  or  to  increase  the  security  in  proportion  to  such  deteri- 
oration or  decrease  of  value,  in  default  of  which  this  note  is  to 
be  considered  due  under  the  above  stipulation.  On  the  pay- 
ment of  the  above  note  and  interest,  according  to  the  terms  of 
the  former,  and  all  charges,  this  agreement  is  to  be  void,  and 
the  above-named  securities  to  be  returned  to  me. 

No.  459. — Pledge  with  Note  and  Security. 
%S^^^^-  ^^  Francisco,  Cal,  September  2,   igo^,. 

For  value  received,  I  promise  to  pay,  in  gold  coin  of  the  United 
States  of  America,  to  R.  R..  or  order,  sixty  (60)  days  after  date 
without  grace,  the  sum  of  five  thousand  (^,000)  dollars,  with  in- 


326  Nijw  Book  of  Forms. 

terest  thereon  at  the  rate  of  one  and  one-half  (1^2)  per  cent  per 
month,  payable  monthly,  in  advance. 

Due  Novcviher  i,  1905. 

I  hereby  transfer  and  deposit  with  said  R.  R.,  as  collateral  se- 
curity for  the  payment  of  the  above  promissory  note,  and  the  in- 
terest and  expenses  which  may  accrue  thereon,  the  following^  per- 
sonal property,  of  which  I  am  the  sole  owner,  the  same  being  at 
my  risk  and  expense,  to  wit:   [Description.] 

In  case  of  nonpayment  of  said  promissory'  note,  or  the  interest 
thereon,  when  due,  I  hereby  appoint  and  constitute  said  R.  R., 
his  heirs  or  assigns,  my  attorney  irrevocable,  with  power  of  sub- 
stitution, to  sell  at  any  time  after  said  note  or  interest  is  due, 
with  or  without  notice,  at  the  option  of  said  R.  R.,  the  whole  or 
any  part  of  said  security,  either  at  public  or  private  sale,  at  his 
discretion ;  and  to  deliver  the  same  to  the  purchaser  or  pur- 
chasers thereof ;  and  the  proceeds  to  be  applied  to  the  payment  of 
said  promissory  note,  interest  due,  and  other  expenses,  together 
with  two  per  cent  commissions  on  sales,  and  any  surplus  after 
payment  of  said  note,  interest,  commissions  and  expenses,  to  be 
subject  to  my  order.  In  like  manner  I  agree  to  pay  on  demand 
to  said  R.  R.,  his  heirs  or  assigns,  whatever  deficit  may  result 
after  applying  the  net  proceeds  of  such  sale  to  the  payment  of 
said  principal  and  interest. 

But  in  case  of  the  payment  of  the  said  note  and  interest,  ac- 
cording to  the  terms  thereof,  then  this  agreement  to  be  void, 
and  the  above-named  security  to  be  returned  to  me. 


POWER  OF  ATTORNEY. 


No.  460. — General  Power  of  Attorney. 

Know  all  Men  by  these  Presents:  That  we,  /.  D.  and  R. 
R.,  of  the  city  and  county  of  San  Francisco,  state  of  California, 
have  made,  constituted  and  appointed,  and  by  these  presents  do 
make,  constitute,  and  appoint  /.  S.,  of  said  city  and  county,  our 
true  and  lawful  attorney  for  us  and  in  our  names,  place,  and 
stead,  and  for  our  use  and  benefit,  to  ask,  demand,  sue  for,  re- 
cover, collect  and  receive  all  such  sums  of  money,  debts,  dues, 
accounts,  legacies,  bequests,  interests,  dividends,  annuities  and 
demands  whatsoever  as  are  now  or  shall  hereafter  become  due, 
owing,  payable  or  belonging  to  us,  and  have,  use  and  take  all 
lawful  ways  and  means  in  our  names  or  otherwise  for  the  re- 
covery thereof,  by  attachments,  arrests,  distress  or  otherwise, 
and  to  compromise  and  agree  for  the  same,  and  acquittances  or 


Power  op  Attorney.  327 

other  sufRcient  discharges  for  the  same,  for  us,  and  in  our  ramcs, 
to  make,  seal,  and  deHver;  to  barj2:ain,  contract,  aj^ree  for,  pur- 
chase, receive,  and  take  lands,  tenements,  hereditaments,  and 
accept  the  seisin  and  possession  of  all  lands,  and  all  deeds  and 
other  assurances,  in  the  law  therefor,  and  to  lease,  let,  demise, 
barjxain,  sell,  remise,  release,  convey,  mortgaj^^e  and  hypothecate 
lands,  tenements  and  hereditaments,  upon  such  terms  and  con- 
ditions, and  under  such  covenants,  as  he  shall  think  fit.  y\lso, 
to  bargain  and  agree  for,  buy,  sell,  mortgage,  hypothecate  and 
in  any  and  every  way  and  manner  deal  in  and  with  goods,  wares, 
and  merchandise,  chose  in  action  and  other  property  in  pos- 
session or  in  action,  and  to  make,  do,  and  transact  all  and  every 
kind  of  business  of  what  nature  or  kind  soever,  and  also  for  us 
and  in  our  names,  and  as  our  act  and  deed,  to  sign,  seal,  execute, 
deliver  and  acknowledge  such  deeds,  leases  and  assignment  of 
leases,  covenants,  indentures,  agreements,  mortgages,  hypothe- 
cations, bottomries,  charter-parties,  bills  of  lading,  bills,  bonds, 
notes,  receipts,  evidences  of  debts,  releases  and  satisfaction  of 
mortgage,  judgments  and  other  debts,  and  such  other  instru- 
ments in  writing  of  whatever  kind  and  nature  as  may  be  neces- 
sary or  proper  in  the  premises. 

Giving  and  granting  unto  our  said  attorney  full  power  and 
authority  to  do  and  perform  all  and  even,'  act  and  thing  what- 
soever requisite  and  necessary  to  be  done  in  and  about  the  prem- 
ises, as  fully  to  all  intents  and  purposes  as  we  might  or  could 
do  if  personally  present,  with  full  pozver  of  substitution  or  revo- 
cation, hereby  ratifying  and  confirming  all  that  our  said  attor- 
ney, or  his  substitute  or  substitutes,  shall  lawfully  do  or  cause 
to  be  done  by  virtue  of  these  presents. 

No.  461. — Special  Power  of  Attorney. 

Know  all  Men  by  these  Presents:  That  we,  M.  H.  F.  and 
E.  B.  D.,  of  the  city  and  county  of  San  Francisco,  state  of  Cali- 
fornia, have  made,  constituted,  and  appointed,  and  by  these  pres- 
ents do  make,  constitute,  and  appoint,  /.  D.  C,  of  said  city  and 
county,  our  true  and  lawful  attorney  for  us  and  in  our  name, 
place,  and  stead,  to  sell  and  transfer  our  interest  in  the  grist-mill 
located  on  the  Guadalupe  river,  Santa  Clara  county,  state  of  Cali- 
fornia, ivith  the  lease  of  the  land,  to  whom  and  on  such  terms  as 
our  said  attorney  may  deem  best,  and  by  such  instrument  or 
means  as  niav  be  agreed  on  betzveen  him  and  any  other  parties. 

Giving  and  granting  unto  our  said  attorney  full  power  and 
authority  to  do  and  perform  all  and  every  act  and  thing  whatso- 
ever requisite  and  necessary  to  be  done  in  and  about  the  prem- 
ises, as  fullv  to  all  intents  and  purposes  as  we  might  or  could 
do  if  personally  present,  with  full  power  of  substitution  and  rev- 


328  New  Book  op  Forms. 

ocation,  hereby  ratifying  and  confirming  all  that  our  said  attor- 
ney or  his  substitute  shall  lawfully  do,  or  cause  to  be  done,  by 
virtue  of  these  presents. 

No.  462. — Special  Power  of  Attorney — Another  Form, 

Know  all  Men  by  These  Presents:  That  I,  F.  A.  R.,  of 
Oro  Pino,  county  of  Siskiyou,  state  of  California,  have  made, 
constituted,  and  appointed,  and  by  these  presents  do  make,  con- 
stitute, and  appoint,  A.  H.  R.,  of  Yreka,  county  aforesaid,  my 
true  and  lawful  attorney  for  me  and  in  my  name,  place,  and 
stead,  and  for  my  use,  to  ask,  demand,  sue  for,  collect,  and  re- 
ceive all  such  sums  of  money  which  are  or  shall  be  due,  owing, 
payable,  and  belonging  to  me,  or  detained  from  me,  in  any  man- 
ner whatsoever,  by  any  person  or  persons  zvhatsoever. 

Giving  and  granting  unto  my  said  attorney  full  power  and 
authority  in  and  about  the  premises ;  and  to  use  all  due  means, 
course  and  process  in  the  law  for  the  full,  effectual,  and  complete 
execution  thereof,  and  in  my  name  to  make,  execute  and  deliver 
all  and  every  instrument  in  writing  under  seal,  or  otherwise,  and 
for  the  premises  to  appear  and  my  person  to  represent  before 
any  governor,  judge,  officer,  and  minister  of  the  law  whatsoever, 
and  in  any  court  or  courts  of  judicature,  and  on  my  behalf,  to 
prosecute  for  debt,  fraud  and  any  manner  of  claims  I  may  have 
against  any  person  or  persons,  and  to  answer,  defend,  and  reply 
unto  all  actions,  causes,  matters,  and  things  whatsover  relating 
to  the  premises.  Also,  to  submit  any  matter  in  dispute  respect- 
ing the  premises  to  arbitration  or  reference.  And  generally  to 
say,  do,  act,  transact,  determine,  accompHsh  and  finish  all  mat- 
ters and  things  whatsoever  relating  to  the  premises,  as  fully, 
amply,  and  effectually,  to  all  intents  and  purposes,  as  I  might  or 
could  do  if  personally  present,  with  full  pozver  of  substitution  or 
revocation,  hereby  ratifying,  confirming,  and  holding  valid  all 
that  my  said  attorney,  or  his  substitute  or  substitutes,  shall  law- 
fully do  or  cause  to  be  done  by  virtue  of  these  presents. 

In  witness  whereof,  etc. 

No.  463. — General  Power  of  Attorney  to  Sell  Mining  Property. 

Know  all  Men  by  these  Presents:  That  I,  W.  S.,  of  the 
city  and  county  of  San  Francisco,  state  of  California,  have  made, 
constituted  and  appointed,  and  by  these  presents  do  make,  con- 
stitute and  appoint,  H.  D.,  my  true  and  lawful  attorney  for  me 
and  in  my  name,  place  and  stead,  and  for  my  use  and  benefit,  to 
grant,  bargain,  sell,  remise,  release,  convey  and  quitclaim  to 
whom  and  upon  such  terms  as  my  said  attorney  may  deem  best, 
all  of  my  right,  title  and  interest,  estate,  claim  and  demand,  both 
in  law  and  in  equity,  as  well  in  possession  as  in  expectancy,  of, 


Power  of  Attorney.  329 

in,  or  to  that  certain  portion,  claim,  and  mining  rij^^ht,  title,  or 
property  on  that  certain  vein  or  lode  of  rock  containing  preciou*; 
metals  of  gold,  silver,  and  other  minerals,  and  situated  in  the 
Big  Cottonwood  Mining  District,  county  of  Salt  Lake,  and  ter- 
ritory of  Utah,  described  as  follows,  to  wit:    TDescription.] 

Giving  and  granting  unto  my  said  attorney  full  power  and  au- 
thority to  do  and  perform  all  and  every  act  and  thing  whatsoever 
requisite  and  necessary  to  be  done  in  and  about  the  premises,  as 
fully  to  all  intents  and  purposes  as  I  might  or  could  do.  if  person- 
ally present,  with  full  power  of  substitution  or  revocation,  hereby 
ratifying  and  confirming  all  that  my  said  attorney,  his  substitute 
or  substitutes,  shall  lawfully  do  or  cause  to  be  done  by  virtue  of 
these  presents. 

In  witness  whereof,  etc. 

No.  464. — Power  of  Attorney  to  Sell  Stocks — Another  Form. 

Know  all  Men  by  These  Presents:  That  I,  T.  0.  S.,  of 
the  city  and  county  of  San  Francisco,  state  of  California,  have 
made,  constituted  and  appointed,  and  by  these  presents  do  make, 
constitute  and  appoint,  R.  K.  A.,  of  said  city  and  county,  mv 
true  and  lawful  attorney,  for  me  and  in  my  name,  place  and 
stead,  to  grant,  bargain,  sell,  assign,  transfer  and  set  over,  for 
such  sum  or  price,  and  on  such  terms  as  to  him  shall  seem  meet, 
the  following  number  of  shares  of  the  capital  stock  of  the  fol- 
lowing companies  standing  in  my  name  on  the  books  of  the  said 
companies,  to  wit:  Three  (j)  shares  of  the  capital  stock  of  the 
G.  &  C.  G.  and  S.  M.  Company;  five  (5)  shares  of  the  capital 
stock  of  the  0.  G.  and  S.  M.  Company ;  and  tiucnty  (20)  shares 
of  the  capital  stock  of  the  J.  H.  G.  and  S.  M.  Company.     And 
for  me,  and  in  my  name,  to  sign  and  execute  all  necessary  papers 
to  that  end.     Giving  and  granting  unto  my  said  attornev   full 
power  and  authority  to  do  and  perform  all  and  every  act  and 
thing   whatsoever   requisite   and    necessary   to   be   done    in    and 
about  the  premises,  as   fully,  to  all  intents  and  purposes,  as   I 
might  or  could  do  if  personally  present,  with  full  power  of  sub- 
stitution and  revocation,  hereby  ratifying  and  confirming  all  that 
my  said  attorney,  or  his  substitute  or  substitutes,  shall  lawfullv 
do  or  cause  to  be  done  by  virtue  of  these  presents. 

No.  465. — General  Custom-house  Power. 

Know  all  Men  by  these  Presents:  That  I,  /.  D.,  do,  by 
these  presents,  constitute  and  appoint  R.  R.  my  lawful  attornev, 
to  receive  and  enter  at  the  custom-house  of  the  district  of  San 
Francisco,  any  goods,  wares,  or  merchandise  imported  bv  me. 
or  which  may  hereafter  arrive  consigned  to  me,  to  sign  my  name 
and  to  seal  and  deliver  for  me,  and  as  mv  act  and  deed,  an'v  bond 


330  New  Book  of  Forms. 

or  bonds  which  may  be  required  by  the  collector  of  the  said 
district  for  securing  the  duties  on  any  such  goods,  wares,  or 
merchandise.  Also  to  sign  my  name  to,  seal  and  deliver  for  me, 
and  as  my  act  and  deed,  any  bond  or  bonds  requisite  for  obtain- 
ing the  debenture  on  any  goods,  wares  or  merchandise  when  ex- 
ported, and  generally  to  transact  all  business  at  the  said  custom- 
house in  which  I  am  or  may  hereafter  be  interested  or  concerned 
as  fully  as  I  could  if  personally  present.  And  I  do  hereby  de- 
clare that  all  bonds  signed  and  executed  by  my  said  attorney 
shall  be  as  obligatory  on  me  as  those  signed  by  myself,  and  this 
power  shall  remain  in  full  force  until  revoked  by  written  notice 
given  to  the  said  Collector. 

No.  466. — Power  of  Attorney  to  Collect  Debts. 

Know  all,  Men  by  these  Presents,  etc.,  and  for  my  use,  to 
ask,  demand,  sue  for,  collect  and  receive  all  such  sums  of  money, 
debts,  rents,  dues,  accounts  and  other  demands  whatsoever,  which 
are  or  shall  be  due,  owing,  payable  or  belonging  to  me,  or  de- 
tained from  me,  in  any  manner  whatsoever,  by  E.  F.,  of,  etc., 
his  heirs,  executors  and  administrators,  or  any  of  them  [or,  by 
any  person  or  persons  residing  or  being  in  the  state  of  Califor- 
nia, giving  and  granting  unto  my  said  attorney,  etc. 

No.  467. — Power  of  Attorney  to  Receive  a  Legacy — Another 

Form. 

Know  all  Men  by  these  Presents:  That  whereas  L.  M., 
late  of  Utah,  deceased,  by  his  last  will  and  testament,  did  give 
and  bequeath  unto  me,  A.  B.,  of,  etc.,  a  legacy  of  -five  hundred 
dollars,  to  be  paid  unto  me  on  the  fourth  day  of  July,  iQOj,  of 
which  said  will  G.  H.  and  S.  T.,  of,  etc.,  are  joint  executors: 
Now,  therefore,  I,  the  said  A.  B.,  have  made,  constituted,  and 
appointed,  and  by  these  presents  do  make,  constitute,  and  ap- 
point, C.  D.,  of  etc.,  my  true  and  lawful  attorney  for  me  and  in 
my  name,  and  for  my  use  and  benefit,  to  ask,  demand,  and  re- 
ceive of  and  from  the  said  G.  H.  and  S.  T.,  executors  as  afore- 
said, the  legacy  given  and  bequeathed  unto  me  by  the  said  will 
of  the  said  L.  M.,  as  aforesaid ;  and  upon  receipt  whereof  by,  or 
payment  thereof  to,  my  said  attorney,  to  make,  execute,  and 
deliver  a  general  release  or  discharge  for  the  same ;  hereby  rat- 
ifying, confirming,  and  allowing  whatever  my  said  attorney  shall 
lawfully  do  in  the  premises. 

No.  468. — Full  Commercial  Power  of  Attorney,  with  Author- 
ity to  Sell,  etc.,  Real  Estate. 

Know  all  Men  by  these  Presents:  That  I,  A.  B.,  of  the 
county  of  Santa  Clara,  state  of  California,  have  made,  consti- 
tuted, and  appointed,  and  by  these  presents  do  make,  constitute ' 


Power  op  ArroRNEY.  331 

and  appoint  C.  D.,  of  the  county  of  Alameda,  state  of  California, 
my  true  and  lawful  attorney,  for  me,  and  in  my  name,  and  on 
my  behalf,  to  ask,  demand,  recover,  and  receive,  all  and  any 
sum  or  sums  of  money,  debts,  dues,  merchandise,  or  eflfects,  due, 
payable,  coming,  or  belonging,  or  which  may  at  any  time  be 
due.  payable,  or  belonging  to  me,  from  any  person  or  persons 
whatsoever;  to  sell  all,  or  any  part,  of  said  goods,  merchandise 
and  effects,  which  may  come  to  his  possession  or  knowledge,  on 
such  credit,  and  for  such  prices  as  he  may  deem  meet ;  to  pur- 
chase any  goods,  merchandise,  specie,  currency,  mining  or  other 
kinds  of  stock  or  other  commodities,  on  my  account  for  such 
prices  and  to  such  amount  as  he  may  deem  meet,  and  the  same 
to  sell  again  for  my  benefit  and  on  my  account,  for  any  prices 
whatsoever,  to  ship  or  transport  the  same,  or  any  part  thereof, 
on  my  behalf  and  account,  to  any  post  or  posts,  place  o:  places, 
whatsoever,  in  any  vessel  or  vessels,  and  with  and  to  any  person 
or  persons  whatsoever,  and  there  barter,  exchange,  and  dispose 
of  the  same ;  to  insure  and  cause  insurance  to  be  made,  of  any 
such  goods,  merchandise,  specie  or  other  commodities,  or  of  any 
part  thereof,  at  such  premiums,  and  for  such  risks  as  he  may 
deem  meet ;  to  accept  any  bill  or  bills  of  exchange  or  orders, 
make  and  execute  any  note  or  notes  of  hand,  bond  or  bonds,  or 
other  instruments  or  contracts,  in  my  name,  and  on  my  account, 
to  and  for  any  amount  which  he  may  deem  meet  or  expedient ; 
to  sell,  barter,  exchange,  or  dispose  of  any  real  estate  of  which 
I  am  now  seised  or  possessed  in  fee  simple,  or  for  any  less  estate, 
to  any  person  or  persons,  for  any  price,  or  in  any  manner  what- 
soever, and  for  these  purposes  to  execute  and  acknowledge  any 
deed  or  deeds,  lease  or  leases,  or  other  assurance  or  assurances, 
with  general  covenants  of  warranty  against  all  persons,  or  any 
other  covenants  whatsoever,  as  he  may  deem  expedient ;  to  pur- 
chase any  real  estate  on  my  account,  in  fee  simple  or  otherwise, 
at  any  price  of  any  exchange  whatsoever,  and  for  these  purposes 
to  receive,  confirm,  make,  and  execute,  any  contracts,  deeds,  con- 
veyances, or  other  instruments  whatsoever;  to  settle  and  adjust 
all  partnership  accounts  and  demands,  and  all  other  accounts  or 
demands  now  subsisting,  or  which  may  hereafter  subsist  between 
me  and  any  person  or  persons  whatsoever,  and  submit  the  same 
to  and  decide  them  by  arbitration ;  to  compound  for  any  debts, 
dues,  or  demands  owing,  or  which  may  hereafter  be  owing  to  me, 
and  to  take  less  than  the  whole,  or  otherwise  to  agree  for  the 
same,  in  such  manner,  and  on  such  terms  as  he,  in  his  discretion, 
may  deem  proper ;  and  for  all  or  any  of  these  purposes,  to  make 
and  execute  any  releases,  compromises,  compositions,  agreements, 
or  contracts,  by  deed  or  otherwise,  in  his  opinion  necessary  and 
expedient  in  the  premises ;  to  pay  and  discharge  all  debts  and 
demands  due  and  payable,  or  which  may  hereafter  become  due 
and  payable  by  me  unto  any  person  or  persons  whatsoever;  to 


332  New  Book  of  Forms. 

enter  into  any  lands  or  other  real  estate  to  which  I  am  or  may 
be  entitled,  and  recover  the  possession  thereof,  and  damages  for 
any  injury  done  thereto,  and  to  distrain  for  rent  due  thereon, 
and  also  to  commence  and  prosecute  unto  final  judgment  and 
execution,  any  suit  or  suits,  action  or  actiorus,  real,  personal  or 
mixed,  which  he  shall  deem  proper  for  the  recovery,  possession, 
or  enjoyment  of  any  matter  or  thing  which  is  or  which  may 
hereafter  be  due,  payable,  owing,  belonging,  accruing,  or  apper- 
taining to  me,  for  or  by  reason  of  the  premises,  or  any  part 
thereof,  and,  in  any  such  suits  or  actions,  for  me  in  person,  or  by 
such  attorney  or  attorneys,  or  counsel,  he  may  deem  necessary  or 
proper  to  retain  or  employ  to  appear  and  plead,  before  any  courts 
or  tribunals  having  jurisdiction  thereof,  and  all  stipulations,  un- 
dertakings, recognizances  and  other  requisites  in  any  suits  or  ac- 
tions, and  any  question  arising  on  the  same,  by  arbitration  or 
other  compromise,  and  of  all  receipts  and  recoveries  in  the  prem- 
ises, due  acquittances  and  discharges  to  execute  and  deliver,  and 
generally  to  do  and  perform  all  matters  and  things,  transact  all 
business,  make,  execute  and  acknowledge  all  contracts,  orders, 
deeds,  mortgages,  satisfaction  of  mortgages,  leases  and  assign- 
ments of  the  same,  and  all  other  writing,  assurances,  and  instru- 
ments of  every  kind,  which  may  be  requisite  or  proper  to  effectu- 
ate all  or  any  of  the  premises,  or  any  other  matter  or  thing  ap- 
pertaining or  belonging  to  me,  with  the  same  powers,  and  to  all 
intents  and  purposes,  with  the  same  validity  as  I  could,  if  per- 
sonally present  [giving  and  granting  unto  my  said  attorney,  full 
pozver  to  substitute  one  or  more  attorneys  under  him,  my  said 
attorney,  in  or  concerning  the  premises,  or  any  part  thereof,  and 
the  same  at  his  pleasure  to  revoke]  ;  and  hereby  ratifying  and 
confirming  whatsoever  my  said  attorney  [or,  his  substitute  or 
substitutes]  shall  and  may  do,  by  virtue  hereof,  in  the  premises. 
[The  power  and  authority  hereby  given  and  conferred  is  con- 
fined and  limited  to  the  states  of  California,  Nevada,  and  Ore- 
gon.'] 

NOTE. — The  foregoing  form  is  fnll  and  complete  enough  for  almost 
every  purpose;  but  if  more  power  is  desired  to  be  conferred  upon  aa 
agent,  the  foregoing  forms  will  readily  suggest  how  easily  any  addition 
can  be  made. 

No.  469. — Povi^er  of  Attorney  to  Vote,  etc. 

Know  all  Men  by  these  Presents  :  That  I,  /.  D.,  do  hereby 
constitute  and  appoint  R.  R.  my  true  and  lawful  attorney,  for 
mc,  and  in  my  name,  place,  and  stead,  to  vote  as  my  proxy  at 
the  annual  meeting  of  the  stockholders  of  the  IV.  G.  and  S.  M. 
Company,  on  Certificates  Nos.  /  to  1,000,  both  inclusive,  for  the 
election  of  trustees  and  transaction  of  other  business,  to  be  held 
on  the  sixth  day  of  August,  1905,  and  according  to  the  number 
of  votes  to  which  I  would  be  entitled  if  personally  present,  with 
full  power  of  substitution  and  revocation. 


PowKR  OF  Attuknicy.  333 


No.  470. — Revocation  of   Power  of  Attorney. 

Know  all  Men  by  these  Presents:  That  whereas,  I,  G.  W., 
of  the  city  of  Stockton,  county  of  San  Joaquin,  state  of  Cali- 
fornia, in  and  by  my  letter,  warrant  and  power  of  attorney,  in 
writinr^,  bearinc;-  date  the  twenty-third  day  of  March,  1905.  make, 
constitute,  and  appoint  H.  E.  H.,  of  said  city,  my  true  and  lawful 
attorney,  for  the  purposes  and  with  the  powers  therein  set  forth, 
as  will  more  fully  and  at  large  appear  by  reference  thereto,  or  to 
the  record  thereof,  made  on  the  said  tzventy-third  day  of  March, 
1905,  in  Book  j,  of  Powers  of  Attorney,  paj^e  48,  in  the  office  of 
the  county  recorder  of  the  said  county  of  San  Joaquin. 

Now,  therefore,  I,  the  said  G.  W.,  for  divers  good  causes  and 
considerations  me  hereunto  moving,  have  revoked,  counter- 
manded, annulled,  and  made  void,  and  by  these  presents  do  re- 
voke, countermand,  annul  and  make  void,  the  said  letter,  war- 
rant, or  power  of  attorney,  and  all  power  and  authority  thereby 
given,  or  intended  to  be  given,  to  the  said  H.  E.  H. 

No.  471. — Substitution  of  Attorney  in  Fact. 

Know  all  Men  by  these  Presents:  That  I,  D.  J.  H.,  of 
Santa  Cruz,  county  of  Santa  Cruz,  and  state  of  California,  by 
virtue  of  the  power  and  authority  to  me  given  in  and  by  the 
letter  or  power  of  attorney  of  A.  W.  B.,  of  said  county,  bearing 
date  the  second  day  of  February,  ipoj,  and  recorded  in  the  office 
of  the  county  recorder  of  said  county  of  Santa  Cm::,  state  of 
California,  on  the  second  day  of  February,  ipo^,  in  book  2,  of 
Powers  of  Attorney,  page  100,  authorising  me  to  sell  certain  real 
estate  in  said  Santa  Cms  [or,  a  copy  of  which  power  of  attorney 
is  hereunto  annexed ;  or,  such  other  description  as  may  be  neces- 
sary to  identify  the  original  power  of  attorney],  do  substitute 
and  appoint  E.  P.,  of  said  county  of  Santa  Cruz,  to  do,  perfonn, 
and  execute  every  act  and  thing  which  I  might  or  could  do  as 
the  attorney  in  fact  and  substitute  of  the  said  A.  W.  B.,  hereby 
ratifying  and  confirming  all  that  the  said  attorney  and  substi- 
tute herein  made  and  appointed  shall  do  in  the  premises,  by 
virtue  hereof,  and  of  the  said  letter  or  power  of  attorney. 


334  New  Book  of  Forms. 


PROMISSORY  NOTES. 


Promissory  Note.— The  words,  "I  owe  you,  C.  D.,  one  mil- 
lion dollars,"  signed  by  A.  B.,  constitute  a  valid,  negotiable  prom- 
issory note.  It  is  uncertain  because  it  bears  no  date.  Add  a 
date  and  it  is  no  longer  uncertain  in  that  respect,  but  is  uncertain 
respecting  the  time  of  payment.  The  rate  of  interest  is  not 
stated,  nor  need  it  be.  In  such  case  it  will  draw  interest  from 
the  day  it  becomes  due.  If  all  dates  are  omitted,  they  may  be 
supplied  by  parol  or  other  evidence. 

The  words,  "without  grace"  are  meaningless  in  California. 
Originally  they  meant  that  the  maker  had  a  specified  time  after 
the  time  specified  for  payment  had  arrived  in  which  to  meet  his 
obligation  ;  but  "grace"  is  no  longer  given,  unless  so  written  in 
the  obligation:  C.  C,  sec.  3181. 

No.  472. — Promissory  Note. 

$10,000.  San  Francisco,  May  20,  190^. 

One  year  after  date,  without  grace,  for  value  received,  I  prom- 
ise to  pay  to  S.  D.,  or  order,  the  sum  of  ten  thousand  dollars  in 
gold  coin  of  the  United  States,  of  the  standard  issued  from  the 
mint  of  the  United  States  during  the  year  18 J2,  with  interest 
thereon  from  date  until  paid,  at  the  rate  of  nine -tzv elf ths  of  one 
per  cent  per  month,  said  interest  payable  in  United  States  gold 
coin  of  the  same  standard,  monthly,  in  advance ;  and  I  agree  that 
in  case  of  default  in  the  payment  of  the  said  principal  sum,  or 
of  any  amount  of  monthly  interest,  as  it  shall  fall  due,  that  such 
amounts  shall  bear  interest  from  the  date  of  their  respective  ma- 
turity until  paid,  at  the  rate  of  one  per  cent  per  month,  and  that 
if  said  monthly  interest,  or  any  part  thereof,  is  not  paid  within 
thirty  days  after  the  same  becomes  due  and  payable,  then  the 
whole  of  said  principal  sum  and  interest  shall  forthwith  become 
due  and  payable  at  the  election  of  the  holder  of  this  note.  This 
note  is  secured  by  a  mortgage  bearing  even  date  herewith. 

No.  473, — Promissory  Note. 

$1,000.  San  Francisco,  February  16,  ipo^. 

Thirty  days  after  date,  without  grace,  for  value  received,  we 
jointly  and  severally  agree  and  promise  to  pay  to  /.  C,  or  order, 
one  thousand  (1,000)  dollars,  with  interest  thereon  at  one  per 
cent  per  nx)nth,  from  date  until  paid,  payable  monthly,  in  ad- 


Promissory  Notes.  335 

vance.     Principal  and  interest  payable  at  4J4  California  street, 
San  Francisco,  in  U.  S.  gold  coin. 

Said  interest,  if  not  paid  as  it  becomes  due,  to  be  added  to  the 
principal  and  become  a  part  thereof,  and  to  bear  interest  at  the 
same  rate.  And  in  case  default  should  be  made  in  the  payment 
of  any  interest,  when  due,  then  both  principal  and  interest  to  be- 
come due  and  payable  immediately  after  such  default,  at  the 
option  of  the  holder  of  this  note. 

No.   474. — Principal  Note  to   Corporation   Secured  by   Mort- 
gage. 

$2j,ooo.  San  Francisco,  January  16,  ipoj. 

On  the  sixteenth  day  of  January,  1905,  at  or  about  three 
o'clock  P.  M.  of  that  day,  without  grace,  and  for  value  received, 
in  gold  coin  of  the  United  States,  I  promise  to  pay  to  the  San 
Francisco  Saz-ings  Union,  a  corporation  duly  incorporated  and 
doing  business  as  such,  or  to  its  order,  at  its  office,  the  principal 
sum  of  twenty-five  thousand  (2^,000)  dollars.  And  I  further 
promise  to  pay  interest  on  said  amount,  at  the  monthly  rate  of 
two-thtrds  of  one  per  cent  to  said  San  Francisco  Saz'ings  Union, 
at  its  office,  without  grace,  on  the  sixteenth  day  of  each  and 
ez'cry  month,  till  payment  of  the  principal,  the  first  payment  to 
be  made  the  sixteenth  day  of  February,  ipoj.  And  I  further 
promise  to  pay  both  principal  and  interest  in  United  States  gold 
coin  of  the  present  standard,  waiving  any  right  which  I  may 
have,  now  or  hereafter,  to  pay  the  same  in  any  other  currencv. 
And  further,  I  agree  that  in  case  of  default  in  the  payment  of 
any  of  the  amounts  of  principal  or  interest  above  stipulated,  then 
such  amounts  shall  bear  interest  from  the  date  of  their  maturity 
until  the  day  of  pavment,  at  tire  rate  of  tzco  per  cent  per  month ; 
and  all  amounts  paid  thereafter  shall  be  applied,  first,  to  the 
payment  of  any  interest  which  may  then  be  due  and  unpaid,  and 
afterward,  the  balance  thereof  to  the  repayment  of  the  said 
principal  sum.  And  I  further  agree  that,  at  any  time  during 
such  default,  the  entire  unpaid  balance  of  said  principal  sum 
shall  become  due  and  payable,  if  the  holder  of  this  note  shall 
so  elect,  and  shall  bear  interest  at  the  rate  of  tzvo  per  cent  per 
month  from  the  date  of  maturity  of  the  last  paid  amount  of 
monthly  interest  until  the  whole  principal  sum  and  interest  shall 
be  paid.  This  note  is  secured  by  a  mortgage  of  even  date  here- 
with. 

No.  475. — Note  Given  to  a  Loan  Society — Secured  by  Mort- 
gage. 

$1,000.  San  Francisco,  May  20,  190^. 

One  year  after  date,  without  grace,  for  value  received,  in  gold 
coin  of  the  United  States.   I  promise  to  pay  to   The  Calif  or  nia, 


33^  New  Book  of  Forms. 

Sarnngs  and  Loan  Society,  or  order,  at  its  office,  in  the  city  and 
county  of  San  Francisco,  California,  the  sum  of  one  thousand 
dollars,  in  gold  coin  of  the  United  States,  of  the  standard  issued 
from  the  Mint  of  the  United  States  during  the  year  1872,  with 
interest  thereon  from  date  until  paid,  at  the  rate  of  one  per  cent 
per  month ;  said  interest  payable  in  United  States  gold  coin  of 
the  same  standard,  monthly,  in  advance;  and  I  agree  that  in 
case  of  default  in  the  payment  of  the  said  principal  sum,  or  of 
any  amount  of  monthly  interest,  as  it  shall  fall  due,  that  such 
amounts  shall  bear  interest  from  the  date  of  their  respective 
maturity  until  paid,  at  the  rate  of  two  per  cent  per  m^nth,  and 
that  if  said  monthly  interest,  or  any  part  thereof,  is  not  paid 
within  thirty  days  after  the  same  becomes  due  and  payable,  then 
the  whole  of  said  principal  sum  and  interest  shall  forthwith  be- 
come due  and  payable,  at  the  election  of  the  holder  of  this  note. 
This  note  is  secured  by  a  mortgage  bearing  even  date  herewith. 

No.  476. — ^Note — Instalknents  Given  to  a  Loan  Society,  Se- 
cured by  Mortgage. 

$2,^oo.  San  Francisco,  May  20,  ipo§. 

For  value  received,  in  gold  coin  of  the  United  States,  we  prcHn- 
ise  to  pay  to  The  California  Savings  and  Loan  Society,  or  order, 
at  its  office,  in  the  city  and  county  of  San  Francisco,  state  of 
California,  the  sum  of  seven  thousand  ttvo  hundred  dollars,  in 
gold  coin  of  the  United  States  of  the  standard  issued  from  the 
Mint  of  the  United  States  during  the  year  1872,  with  interest 
thereon  from  date  until  paid,  at  the  rate  of  nine-twelfths  of  one 
per  cent  per  month,  in  manner  following,  that  is  to  say:  in  sev- 
enty-two equal  installments,  of  one  hundred  dollars  each,  in  said 
gold  coin ;  the  first  of  said  installments  to  be  paid  in  said  gold 
coin  on  the  twentieth  day  of  June,  ipo§,  without  grace,  and  a 
like  installment  in  said  gold  coin  on  the  twentieth  day  of  each 
and  every  month  thereafter,  without  grace,  until  the  whole  of 
said  principal  sum  of  seven  thousand  two  hundred  dollars,  to- 
gether with  the  interest  that  shall  grow  due  upon  the  decreasing 
amounts  thereof,  as  herein  specified,  shall  have  been  fully  paid. 
And  we  agree  that  in  case  of  default  of  the  pajTnent  of  any 
of  said  installments,  when,  by  the  terms  hereof  the  same  shall 
fall  due,  that  such  installments  shall  bear  interest  from  the  date 
of  their  respective  maturity  until  paid,  at  the  rate  of  two  per 
cent  per  month.  And  that  if  any  one  of  said  installments  is  not 
paid  within  thirty  days  after  the  same  becomes  due  and  payable, 
the  whole  of  the  principal  sum  then  remaining  unpaid,  together 
with  the  interest  that  shall  have  accrued  thereon,  shall  forthwith 
become  due  and  payable,  at  the  election  of  the  holder  of  this 
note.  This  note  is  secured  by  a  mortgage  bearing  even  date 
herewith. 


I*ROMlSSORY    NOTXS — PROTEST.  337 


No.  477. — Promissory  Note. 

$75^-  '^(^  Francisco,  August  ^i,  rpo^. 

Sixty  (60)  days  after  date,  without  grace,  I  promise  to  pay  to 
R.  M.,  or  order,  the  sum  of  seven  hundred  and  fifty-six  (736) 
dollars,  payable  only  in  gold  coin  of  the  United  States,  for  value 
received,  with  interest  thereon,  in  like  gold  coin,  at  the  rate  of 
two  per  cent  per  month  from  date  till  paid. 

No.   478. — Promissory  Note, 
$S^^-  San  Francisco,  January  22,  ipo^. 

Sixty  (60)  days  after  date,  without  grace,  I  promise  to  pay  to 
/.  P.,  or  order,  the  sura  of  three  hundred  (300)  dollars,  with  m- 
terest  thereon  at  the  rate  of  one  per  cent  per  month,  from  date 
until  paid.  Principal  and  interest  payable  only  m  United  States 
gold  coim;  value  received.  And  in  the  event  of  a  suit  to  enforce 
the  collection  of  this  note,  or  any  portion  thereof,  I  further  agree 
to  pay  the  additional  sum  of  five  per  cent  in  like  gold  coin,  upon 
the  amount  found  due,  as  attorney  fees  in  said  suit. 

NOTE. — If  a  promissory  not«  contains  the  words  "or  order  "  it  is 
negotiable,  but  if  omittec^  it  is  not,  If  it  contains  any  other  contract 
than  a  direct  promise  to  pay  money,  it  is  not  negotiable.  The  words, 
"or  order,"  make  all  others  negotiable.  The  contract  to  pay  attorney's 
fees  makes  Form  478  non-negotiable.  Therefore,  the  aforesaid,  so- 
called,  promissory  note  is  not  strictly  a  promissory  note,  though  it 
ia  a  valid  contract  to  pay  $300  and  interest.  This  form  is  in  every- 
day use  as  a  promissory  note,  and  some  holders  discover  it  is  not  when 
they  attempt  to  pledge  it  to  secure  a  loan,  or  assign  it  before  it  is 
due  to  an  innocent  holder.  If  suit  is  brought  upon  it  the  maker  may 
admit  its  execution  and  claim  the  right  to  offset  a  debt  of  the  payee  to 
him  accruing  subsequent  to  the  date  of  the  instrument.  If  the  contract 
to  pay  the  attorney's  fe«  had  been  omitted,  the  offset  would  not  have 
been  allowed. 


PROTEST. 


No.  479. — Protest,  Notice  of. 

United  States  of  America, 
State  of  California. — ss. 

Sirs:  Please  take  notice  that  a  certain  promissory  note,  dated 
May  I,  1905,  for  the  sum  of  five  thousand  dollars,  payable  thirty 
days  after  date,  drawn  by  H.  J.,  in  favor  of  S.  W.,  and  indorsed 
New  Forms — 22 


338  New  Book  of  Forms. 

by  yon,  was  this  day  presented  by  me,  a  notary  public,  te  said 
H.  J.,  the  maker  of  the  said  note,  and  payment  therefor  de- 
manded, which  was  refused,  and  the  said  promissory  note  having 
been  dishonored,  the  same  was  this  day  protested  by  me  for  the 
nonpayment  thereof,  and  the  holder  looks  to  you  for  the  payment 
thereof,  together  with  all  costs,  charges,  interest,  expenses,  and 
damages  already  accrued,  or  that  may  hereafter  accrue  thereon 
by  reason  of  the  nonpayment  of  said  promissory  note. 

NOTK — California,  a  C,  sec  3231. 
No.  480. — ^Note  Payable  at  Particular  Place — Notices  Mailed. 

UNITED  STATES  OF  AMERICA. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

On  the  jrf  day  of  June,  in  the  year  of  our  Lord  one  thousand 
nine  hundred  and  four,  at  the  request  of  The  Bank  of  California, 
holder  of  the  promissory  note  hereinafter  set  forth,  I,  /.  M., 
notary  public,  duly  commissioned  and  sworn,  dwelling  in  the 
city  and  county  of  San  Francisco,  did,  during  business  hours  of 
said  day,  present  the  original  promissory  note  (a  copy  of  which 
is  indorsed  on  the  reverse  of  this  sheet),  at  the  Bank  of  Califor- 
nia, in  this  city,  where  the  same  is  made  payable,  and  demanded 
payment  thereof  from  the  paying  teller,  which  he  refused,  say- 
ing: "No  authority  to  pay." 

Whereupon  I,  the  said  notary,  at  the  request  aforesaid,  did 
protest,  and  by  these  presents  do  publicly  protest,  as  well  as 
against  the  maker  and  indorsers  as  against  all  others  whom  it 
doth  or  may  concern,  for  exchange,  re-exchange,  and  all  costs, 
damages,  and  interests,  already  incurred  and  to  be  hereinafter 
incurred  for  the  nonpayment  of  the  said  promissory  note. 

I  do  hereby  certify  that  on  the  jc^  day  of  June,  A.  D.  1904., 
notice  of  protest,  demand  and  nonpayment  of  the  above-men- 
tioned promissory  note  was  served  upon  A.  B.  and  C,  indorsers, 
by  depositing  the  same  in  the  United  States  postofUce  in  said 
city,  postage  fidly  prepaid  thereon  directed  to  them  respectively 
as  follows: 

Oakland,  California, 
San  Jose,  California, 
such  being   the  reputed  places  of  residence  of  said  respective 
parties  and  the  postofhces  nearest  thereto,  according  to  the  best 
information  I  could  obtain. 

Thus  done  and  protested,  in  the  city  and  county  of  San  Fran^ 
Cisco,  aforesaid,  the  days  and  years  above  written. 

[Seal]  /.  M., 

Notary  Public  in  and  for  the  City  and  County  of  San  Francisco, 
State  of  California. 


Protest. 


339 


No.  481. — Note — Presented  to  Maker  Personally — Notice 
Served  on  Indorser  Personally  or  Delivered  at  Place  of 
Business. 

UNITED  STATES  OE  AMERICA, 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

On  the  ?cf  day  of  June,  in  the  year  of  our  Lord  one  thousand 
nine  hundred  and  five,  at  the  request  of  The  Bank  of  California, 
holder  of  the  promissory  note  hereinafter  set  forth,  I,  /.  M., 
notary  public,  duly  commissioned,  and  sworn,  dwelling'  in  the 
city  and  county  of  San  Francisco,  did,  during  business  hours  of 
said  day,  present  the  original  promissory  note  (a  copy  of  which 
is  indorsed  on  the  reverse  of  this  sheet),  to  the  maker  in  the  city 
and  county  of  San  Francisco,  and  demanded  payment  thereof 
from  him  personally,  which  he  refused,  saying,  "I  cannot  pay 
this  to-day," 

Whereupon  I,  the  said  notary,  at  the  request  aforesaid,  did 
protest,  and  by  these  presents  do  publicly  protest,  as  well  as 
against  the  maker  and  indorsers  as  against  all  others  whom  it 
doth  or  may  concern,  for  exchange,  re-exchange,  and  all  costs, 
damages,  and  interests  already  incurred  and  to  be  hereinafter 
inairred  for  the  nonpayment  of  the  said  promissory  note. 

I  do  hereby  certify  that  on  the  3d  day  of  June,  A.  D.  1905, 
notice  of  protest,  demand  and  nonpayment  of  the  above-men- 
tioned promissory  note  was  served  upon  H.  O.,  indorser,  by  de- 
livering the  same  to  him  personally  in  said  city.  [Or  upon  D. 
F.,  indorser,  by  delivering  the  same  at  his  place  of  business.  No. 
32^  Montgomery  street,  in  this  city,  to  a  person  of  discretion,  in 
charge,  apparently  acting  for  him.] 

No,  482. — Maker  cannot  be  Found  and  has  No  Known  Place 
of  Business  or  Residence    (Notices   Mailed). 

United  States  of  America, 

State  of  California, 

City  and   County  of  San   Francisco, — ss. 

On  the  3d  day  of  June,  in  the  year  of  our  Lord  one  thousand 
nine  hundred  and  five,  at  the  request  of  The  Bank  of  California, 
holder  of  the  promissory  note  hereinafter  set  forth,  I,  J.  M.', 
notary  public,  duly  commissioned  and  sworn,  dwelling  in  the 
city  and  county  of  San  Francisco,  did,  during  business  hours  of 
said  day,  present  the  original  promissory  note  (a  copy  of  which 
is  indorsed  on  the  reverse  of  this  sheet),  to  several  persons,  at 
several  places  in  said  city,  and  did  make  due  and  diligent  search 
and  inquiry  for  the  maker  to  demand  payment  thereof,  but  I 


340  New  Book  o?  Forms. 

coidd  not  Und  him  nor  anyone  to  pay  said  note.  I  was  credibly 
informed  that  said  A.  B.  did  not  reside  here,  and  had  no  office 
or  place  of  business  in  San  Francisco. 

Whereupon  I,  the  said  notary,  at  the  request  aforesaid,  did 
protest,  and  by  these  presents  do  publicly  protest,  as  well  ?s 
against  the  maker  and  indorsers  as  against  all  others  whom  it 
doth  or  may  concern,  for  exchange,  re-exchange,  and  all  cosLo, 
damages,  and  interests  already  incurred  and  to  be  hereinafter 
incurred  for  the  nonpayment  of  the  said  promissory  note. 

I  do  hereby  certify,  that  on  the  4th  day  of  June,  A.  D.  ipo^, 
notice  of  protest,  demand,  and  iwnpayment  of  the  above-men- 
tioned promissory  note  was  served  upon  A.  B.  and  C,  indorsers, 
by  depositing  the  same  in  the  United  States  postoffice  in  this 
city,  postage  fully  prepaid  thereon,  directed  as  follows :  At  their 
lest  knozvn  places  of  residence,  such  being  the  reputed  places  of 
residence  of  said  respective  parties  and  the  postoffices  nearest 
thereto,  according  to  the  best  information  I  could  obtain. 


No.  483. — When  Last  Place  of  Residence  or  Business  can  be 
Ascertained,  but  Maker  cannot  be  Found  (Notices 
Mailed). 

UNITED  STATES  OF  AMERICA. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

On  the  j(i  day  of  June,  in  the  year  one  thousand  nine  hun- 
dred and  five,  at  the  request  of  The  Bank  of  California,  holder 
of  the  promissory  note  hereinafter  set  forth,  /,  J.  M.,  notan^  pub- 
lic, duly  commissioned  and  sworn,  dwelling  in  the  city  and  county 
of  San  Francisco,  did,  during  business  hours  of  said  day,  pre- 
sent the  original  promissory  note  (a  copy  of  which  is  indorsed 
on  the  reverse  of  this  sheet),  at  No.  3^,262  California  street,  in 
this  city,  ivhich  I  was  informed  tvas  the  last  reputed  place  of 
residence  in  this  city  of  J.  S.,  the  maker,  and  demanded  payment 
thereof  from  a  person  in  charge  competent  to  give  answers,  which 
he  refused,  saying,  "J.  S.  formerly  lived  here,  but  I  do  not  know 
his  present  address." 

Whereupon  I,  the  said  notary,  at  the  request  aforesaid,  did 
protest,  and  by  these  presents  do  publicly  protest,  as  well  as 
against  the  maker  and  indorsers  as  against  all  others  whom  it 
doth  or  may  concern,  for  exchange,  re-exchange,  and  all  costs, 
damages,  and  interests  already  incurred  and  to  be  hereinafter 
incurred  for  the  nonpayment  of  the  said  promissory  note. 


Protest.  341 

No.  484. — When  Draft  is  Accepted  "Supra  Protest"  (Notices 

Mailed) . 

UNITED  STATES  OP  AMERICA. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

On  the  3d  day  of  June,  in  the  year  one  thousand  nine  hun- 
dred and  five,  at  the  request  of  The  Bank  of  California,  holder  of 
the  bill  of  exchange  hereinafter  set  forth,  I,  J.  M.,  notary  public, 
duly  commissioned  and  sworn,  dwelling  in  the  city  and  county  of 
San  Francisco,  did,  during  business  hours  of  said  day,  present 
the  original  hill  of  exchange  (a  copy  of  which  is  indorsed  on  the 
reverse  of  this  sheet),  at  the  place  of  busiyiess  of  A.  B.  &  Co.,  the 
drawers.  No.  3763  Maple  street,  in  this  city,  and  demanded  accept- 
ance thereof  from  a  member  of  the  firm,  which  he  refused  saying, 
"No  advice."  I  then  presented  said  draft  to  C.  D.,  the  drawee,  in 
ca^e  of  need,  and  demanded  acceptance  thereof  from  him,  to 
which  he  replied,  "I  will  accept  this  'supra  protest'  for  the 
honor  of  E.  F.  &  Co.,  the  drawers." 

Whereupon,  I,  the  said  notary,  at  the  request  aforesaid,  did 
protest,  and  by  these  presents  do  publicly  protest,  as  well  as 
against  the  drawer,  indorsers,  as  against  all  others  whom  it  doth 
or  may  concern,  for  exchange,  re-exchange,  and  all  costs,  damages 
and  interests,  already  incurred  and  to  be  hereinafter  incurred 
for  the  nonacceptance  of  the  said  bill  of  exchange. 

I  do  hereby  certify,  that  on  the  4th  day  of  June,  A.  D.  1905, 
notice  of  protest,  demand  and  nonacceptance  of  the  above-men- 
tioned hill  of  exchange  was  served  upon  the  drawers  and  in- 
dorsers, hy  depositing  the  same  in  the  United  States  postoffice  in 
this  city,  postage  fully  prepaid  thereon,  directed  to  them  respect- 
ively, as  follows: 

E.  F.  &  Co.,  Hamhurg,  Germany. 
C.  D.  &  Co.,  London,  England. 
A.  G.  &  Co.,  New  York,  N.  Y. 
— such  heing  the  reputed  places  of  residence  of  said  respective 
parties,  and  the  postofjices  nearest  thereto,  according  to  the  hest 
information  I  could  obtain. 

No.  485.— Draft  Payable  at  Sight. 

San  Francisco,  Cal.  June  3d,  1905. 
Sir:  Please  take  notice  that  a  certain  draft,  dated  May  3, 
1905,  for  one  thousand  dollars  payable  at  sight,  drawn  by  A.  B. 
on  C.  D.,  San  Francisco,  California,  in  favor  of  and  indorsed  J. 
D.,  also  indorsed  L.  M.,  was  this  day  protested  by  me  for  the 
nonpayment  thereof,  and  the  holders  look  to  you  for  the  paj-ment 


34:2  New  Book  of  Forms. 

thereof,  together  with  all  costs,  charges,  interests,  expenses  and 
damages  already  accrued  or  that  may  hereafter  accrue  thereon 
by  reason  of  the  nonpayment  of  said  draft. 
To  J.  D.  and  L.  M.  ' 

No.  486.— Master's  Protest— Distress  of  Weather. 

UNITED  STATES  OF  AMERICA. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

On  the  3d  day  of  June,  A.  D.  1905,  before  me,  /.  M.,  notary 
public,  duly  commissioned  for  the  city  and  county  aforesaid,  per- 
sonally appeared  E.  H.,  Master  of  the  Ship.  "Bolinas  Bay,"  and 
J.  L.,  his  mate,  belonging  to  the  port  of  Liverpool,  England,  who 
sailed  from  said  port,  with  said  vessel  on  the  7th  day  of  Decem- 
ber, 1904,  with  a  cargo  of  coal,  bound  for  the  port  of  Eureka,  in 
the  state  of  California,  and  arrived  at  this  port  of  San  Francisco 
on  the  3d  day  of  June,  1905,  and  having  experienced  heavy 
"weather  on  the  passage,  which  carried  away  the  fore  and  main- 
masts of  said  ship  and  caused  the  ship  to  leak,  and  fearing 
dam.age,  notes  his  protest,  to  be  extended,  if  need  be. 

Subscribed  and  sworn  to. 


RECEIPTS. 


No.  487.— Receipts. 

San  Francisco,  February  1,  1905. 
Received  from  J.  D.,  the  sum  of  one  hundred  (100)  dollars, 
salary  in  full  for  the  month  of  January,  1905,  at  $100  per  month. 

No.  488.— Receipt. 

San  Francisco,  March  1,  1905. 
Received  of  E.  D.  C,  one  hundred  (100)  dollars,  rent  of  Water 
Lots  Nos.  9  and  10,  on  Front  street,  from  March  1, 1905,  to  April 
1,  1905. 

No.  489. — Receipt  in  Full  for  Less  than  Sum  Due. 

$1000.  San  Francisco,  May  20,  1905. 

Received  of  J.  B.,  of  the  city  and  county  of  San  Francisco,  the 
sum  of  one  thousand  dollars,  in  full  and  complete  satisfaction  of 
a  debt  due  me  from  J.  B.,  of  the  same  Dlaee.    Said  sum  of  money 


Receipts.  343 

now  paid  me  by  the  said  J.  B.,  being  less  than  the  true  sura  due 
me  from  him  as  aforesaid.  This  instrument  is  intended  as  a 
receipt  of  a  less  sum  than  the  whole  amount  due,  and  in  full 
discharge  of  the  whole  amount  due. 

No.  490.— Receipt  in  Full  of  All  Demands. 
$100.  San  Francisco,  May  20,  1905. 

Received  of  J.  B.  one  thousand  dollars,  in  full  of  all  demands 
against  him. 

No.  491. — Receipt  on  Account. 
$100.  San  Francisco,  May  30,  1905. 

Received  of  J.  B.  $100,  to  apply  on  account. 

No.  492. — Receipt  for  Money  Paid  for  Another. 

$100.  San  Francisco,  May  10,  1905. 

Received  of  J.  L.  $100,  in  full  of  all  demands  against  J.  L.  B. 

No.  493. — Receipt  for  a  Special  Purpose. 

Received  May  31, 1905,  from  L.  S.,  $100,  to  pay  the  account  of 
0.  S.  against  him. 

No.  494. — Receipt  when  Money  is  Paid  by  a  Third  Person. 

Oakland,  May  3,  1905. 
Received  of  L.  0.,  through  M.  A.,  $100,  in  full  of  all  demands 
against  L.  0.,  up  to  this  date. 

No.  495. — Receipt  of  Interest   to  be  Indorsed  on  a  Bond. 

Received  3Iay  3,  1905,  of  T.  C,  $100,  being  the  semi-annual 
interest  this  day  due  on  the  within  bond. 

No.  496. — Receipt  in  Full  for  a  Special  Account. 

San  Jose,  May  20,  1905. 
Received  from  M.  0.,  $100,  in  full  of  all  demands  for  rent  to 
May  3,  1905. 

No.  497. — Receipt  for  Papers  in  a  Case. 

San  Francisco,  Majf  15,  1905. 
Received  of  A.  B.  the  following  papers:  [Description.] 


344  New  Book  op  Forms. 

No.  498. — Receipt  for  Instrument  for  Record. 

Recorder's  Office,  Sacramento  County,  Cal. 
H.  H.  to  G.  C.  P,    Deed.    Received  tiie  above-entitled  instru- 
ment for  record,  from  G.  C.  P.,  February  3,  1905.    Returnable 
only  to  the  party  leaving  the  same  or  order.    $7.50. 


RELEASE. 


No.  499. — Release  of  All  Demands. 

Know  all  ]\Ien  by  these  Presents:  That  I,  A.  H.,  of  the 
county  of  Los  Angeles,  state  of  Calif oimia,  for  and  in  considera- 
tion of  the  sum  of  one  hundred  dollars,  gold  coin  of  the  United 
States  of  America,  to  me  in  hand  paid  by  J.  L.,  of  the  county  of 
Tulare,  state  aforesaid,  have  released  and  forever  discharged, 
and  by  these  presents  do,  for  mj'self ,  my  heirs,  executors,  and  ad- 
ministrators, release  and  forever  discharge  the  said  J.  L.,  his 
heirs,  executors,  and  administrators,  of  and  from  all,  and  all 
manner  of  actions  and  cause  of  actions,  suits,  debts,  dues,  sums 
of  money,  accounts,  reckonings,  bonds,  bills,  specialties,  cove- 
nants, controversies,  agreements,  promises,  variances,  trespasses, 
damages,  judgments,  extents,  executions,  claims  and  demands 
whatsoever,  in  law  or  in  equity,  which  against  the  said  J.  L.  I 
ever  had,  or  now  have,  or  which  I,  or  my  heirs,  executors,  or 
administrators  hereafter,  can,  shall,  or  may  have,  for,  upon,  or 
by  reason  of  any  matter,  cause,  or  thing  whatsoever,  from  the 
beginning  of  the  world  to  the  date  of  these  presents. 

No.  500. — Release  of  All  Demands — Another  Form. 

Know  all  Men  by  these  Presents  :  That  I,  J.  B.,  of  Oakland, 
Alameda  county,  California,  for  and  in  consideration  of  the 
sum  of  one  thousand  dollars,  to  me  in  hand  paid  by  D.  C,  of  said 
city,  have  remised,  released,  and  forever  discharged  the  said  D. 
C.  from  all  claims  of  every  kind,  nature,  and  character  whatso- 
ever against  him  from  the  beginning  of  the  world  to  this  day. 

No.  501. — Release  Made  in  Pursuance  of  Award. 

Know  all  Men  by  these  Presents:  That  I,  N.  S.,  of,  etc., 
in  the  county  of,  etc.,  have  remised,  released,  and  forever  quit- 
claimed, and  by  these  presents  do  remise,  release,  and  forever 
quitclaim,  unto  W.  A.  W.,  of,  etc.,  in  the  said  county,  his  heirs, 
executors,  and  administrators,  from  all  actions,  cause  and  causes 


Release.  345 

ef  action,  judgments,  suits,  controversies,  trespa.sses,  debt,  duties, 
damage,  accounts,  reckonings,  and  demands  whatsoever,  for  or 
by  reason  of  any  matter,  cause  or  thing  whatsoever,  from  the 
beginning  of  the  world  to  the  first  day  of  April  last,  save  and 
except  my  right  to  redeem  a  certain  farm  now  in  mortgage  to 
the  said  W.  A.  W.,  at  the  time,  under  the  terms,  and  in  the 
manner  prescribed  in  and  by  a  certain  award  made  the  third 
day  of  January,  in  the  year  1905,  by  II.  S.,  of,  etc.,  on  refer- 
ence to  him  of  all  disputes  between  me  and  the  said  W.  A.  W. 
In  witness,  etc. 

No.  502. — Release  by  Indenture. 

This  Indenture,  made  this  first  day  of  May,  between  A.  L.,  of, 
etc.,  of  the  one  part,  and  P.  G ,  of.  etc.,  of  the  other,  witnesseth, 
that  on  the  date  hereof  the  said  P.  C  and  A.  L.,  have  each  paid  to 
the  other  the  sum  of  ten  dollars,  and  each  of  them  has  canceled 
and  delivered  up  to  the  other  certain  covenants,  bonds,  notes  of 
hand,  and  written  contracts,  upon  which  each  of  the  parties 
claimed  and  pretended  to  have  divers  claims  and  demands  on  the 
other ;  the  said  claims  and  contracts  so  canceled  and  delivered  up 
being  supposed  and  intended  to  be  all  the  claims  and  evidence  of 
claim  by  each  of  the  parties  hereto  on  the  other.  And,  in  con- 
sideration thereof,  each  of  them,  the  said  P.  C.  and  A.  L.,  does 
hereby  for  himself  and  his  legal  representatives  release  and  ab- 
solutely and  forever  discharge  the  other  of  and  from  all  claims 
and  demands,  actions  and  causes  of  action,  of  every  name  and 
nature,  so  that  neither  of  them  shall  have  any  claim  on  the 
other,  directly  or  indirectly,  on  any  contract  or  supposed  liabil- 
ity or  thing  undertaken,  done,  or  admitted  to  be  done,  from  the 
beginning  of  the  w'orld  to  this  day. 

In  witness,  etc. 

No.  503. — Release  to  a  Guardian. 

Know  all  Men  by  these  Presents,  etc.,  that  A.  P.,  etc.,  son 
and  heir  of  L.  P.,  deceased,  now  over  twenty-one  years  old.  hath 
remised,  released,  and  forever  quitclaimed,  and  by  these  presents 
doth  remise,  etc.,  unto  A.  B.,  of  S.  F.,  his  guardian,  all  and  all 
manner  of  action,  actions,  suits,  reckonings,  accounts,  debts,  dues 
and  demands  whatsoever,  which  he,  the  said  A.  P.,  ever  had.  now 
hath,  or  which  he,  his  executors  or  administrators,  at  any  time 
hereafter  can  or  may  have,  claim,  or  demand,  against  the  said  A. 
B.,  his  executors  or  administrators,  for,  touching,  and  concern- 
ing the  management  and  disposition  of  any  of  the  lands,  tene- 
ments and  hereditaments  of  the  said  A.  P.,  situate,  etc.,  or  any 
part  thereof,  or  for  or  by  reason  of  any  moneys,  rents,  or  profits, 
by  him  received  out  of  the  same,  or  any  payments  made  thereout, 


346  New  Book  of  Forms. 

during  the  minority  of  the  said  A.  P.,  or  by  reason  of  any  matter, 
cause,  or  thing  whatsoever,  rehiting  thereto,  from  the  beginning 
of  the  world  to  the  day  of  the  date  hereof. 

No,  504. — Release  of  Proviso  or  Condition. 

Know  all  I\rEN  by  these  Presents,  etc.,  that  I,  0.  L.,  of  0., 
for  divers  good  considerations  me  hereunto  moving,  have  remised, 
released,  and  quitclaimed  and  by  these  presents,  for  me,  my  exec- 
utors, administrators  and  assigns,  do,  etc.,  unto  L.  S.,  of  8.,  his 
heirs,  executors,  administrators  and  assigns,  as  well  one  proviso  or 
condition,  and  all  and  every  the  sum  and  sums  of  money  specified 
in  the  same  proviso  or  condition,  contained  or  comprised  in  one 
pair  of  indentures,  of,  etc.,  bearing  date,  etc.,  made  between  me, 
the  said  L.  8.,  of  the  one  part,  and  the  said  0.  L.,  of  the  other 
part,  and  also  all  and  all  manner  of  actions  and  suits,  cause  and 
causes  of  action  and  suits,  for  or  concerning  the  said  proviso  or 
condition. 

No,  505. — Release  of  Legacy. 

Know  all  Men  by  these  Presents  :  That  whereas,  W.  B.,  of 
S.  F.,  in  the  county  of  8.  F.,  and  state  of  C,  by  his  last  will  and 
testament,  in  writing,  bearing  date  the  first  day  of  April,  1905, 
did,  among  other  legacies  therein  contained,  give  and  bequeath 
unto  me  the  sum  or  legacy  of  ten  dollars,  and  of  his  said  will  and 
testament  did  make  and  constitute  0.  T.  the  sole  executor.  Now, 
therefore,  I  hereby  acknowledge  the  receipt  from  the  said  execu- 
tor, as  aforesaid,  of  the  said  sum  or  legacy  of  ten  dollars,  so  given 
and  bequeathed  to  me  aforesaid,  and  to  acquit,  release,  and  dis- 
charge the  said  0.  T.  of  and  from  all  legacies,  dues  and  demands 
whatsoever,  under,  or  by  virtue  of  the  said  last  will  and  testa- 
ment, or  against  or  out  of  the  estate  of  the  said  W.  B. 

No.  506, — Release  of  a  Trust. 

Whereas,  by  indenture  bearing  date,  June  1,  1905,  made  be- 
tween, etc.  [here  recite  the  deed],  in  which  said  indenture  the 
said  0.  P.  doth  hereby  declare  that  his  name  was  only  used  in 
trust,  for  the  benefit  and  behoof  of  A.  Z.: 

Now,  know  ye,  that  I,  the  said  0.  P.,  in  discharge  of  the  trust 
reposed  in  me,  at  the  request  of  the  said  A.  Z.,  have  remised,  re- 
leased, and  surrendered,  assigned  and  set  over,  and  by  these  pres- 
ents, for  me,  my  executors  and  administrators,  do  freely  and  ab- 
solutely remise,  etc.,  unto  the  said  A.  Z.,  his  executors,  etc.,  all 
the  estate,  right,  title,  interest,  use,  benefit,  privilege  and  demand 
whatsoever,  which  I,  the  said  0.  P.,  have,  or  may  have,  or  claim 
of  or  to  the  said  premises,  or  of  and  in  any  sum  of  money  or  other 


Release.  347 

matter  or  thing  whatsoever,  in  the  said  indenture  contained,  men- 
tioned, and  expressed ;  so  that  neither  /,  the  said  0.  P.,  my  exec- 
utors or  administrators,  or  any  of  us,  at  any  time  hereafter,  shall 
or  will  ask,  claim,  challenge  or  demand,  any  interest,  etc.,  or  other 
thing,  in  any  manner  whatsoever,  by  reason  or  means  of  the  said 
indenture  or  any  covenant  therein  contained,  but  thereof  and 
therefrom,  and  from  all  actions,  suits  and  demands,  which  I,  my 
executors,  administrators  or  assigns,  may  have  concerning  the 
same,  shall  be  utterly  excluded  and  forever  debarred  by  these 
presents. 

No.  507. — Release  by  a  Legatee  upon  His  Coming  of  Age. 

Knov^  all  Men  by  these  Presents:  That  whereas,  A.  S.,  of  S., 
made  his  last  will  and  testament  in  writing,  bearing  date  third 
day  of  June,  1905,  and,  among  other  legacies  therein  contained, 
did  give  and  bequeath  unto  me,  T.  S.,  of  S.,  his  son,  the  annual 
sum  of  $1,000,  to  be  paid  to  me  quarterl}^  until  I  should  attain 
the  age  of  one  and  twenty  years;  and  of  his  will  constituted  0. 
S.  and  P.  C.  joint  executors,  as  in  and  by  the  said  will  may  ap- 
pear ;  and  whereas,  the  said  0.  S.  and  P.  C.  did  jointly  accept  of 
the  said  executorship,  and  trust,  and  I,  the  said  T.  S.,  have  at- 
tained my  said  age  of  tw'enty-one  years;  and  whereas,  the  said 
0.  S.  and  P.  C.  have  made  up  an  account  with  me,  the  said  T.  S., 
of  all  moneys  received  and  paid  by  the  said  S.  and  C,  and  all 
transactions  in  pursuance  of  the  said  executorship  and  trust,  and 
have  not  only  paid  me  the  balance  of  such  accounts,  but  also  de- 
livered unto  me  all  the  writing  and  papers  belonging  to  the  estate 
of  the  said  deceased: 

Now,  know  ye,  that  I,  the  said  T.  S.,  being  fully  satisfied  in  the 
premises,  have  remised,  released,  and  forever  quitclaimed,  and  by 
these  presents  do  remise,  release,  and  forever  quitclaim  unto  the 
said  0.  S.  and  P.  C,  and  each  of  them,  their  and  each  of  their 
executors  and  administrators,  all  reckonings  and  accounts,  sum 
and  sums  of  money  by  them  had  and  received  in  pursuance  of 
the  said  trust,  or  by  means  of  their  being  executors  to  the  said 
A.  S.,  as  aforesaid ;  and  also  of  and  from  all  other  reckonings,  ac- 
counts, and  demands  whatsoever,  from  the  beginning  of  the  world 
to  the  day  of  the  date  of  these  presents. 

No.  508. — Release  of  Lien  on  Land  by  a  Judgment  Creditor. 
[Title  of  Court  and  Cause.] 

Judgment  rendered  the  third  day  of  May,  1905,  in  the  superior 
court  of  the  county  of  Alameda,  against  said  J.  B.,  and  in  favor 
of  said  /.  S.,  for  the  sum  of  one  thousand  dollars  damages,  and 
ten  dollars,  costs  of  suit. 


348  New  Book  op  Forms. 

In  consideration  of  one  thousand  dollars,  to  me  in  hand  paid, 
the  receipt  whereof  is  acknowledged,  I  do  hereby  remise,  release, 
and  discharge  the  following  described  land  and  premises,  to  wit 
[descripti&n  of  the  premises],  from  all  claim  to  or  interest  in  the 
same,  or  any  part  thereof,  which  I  may  have  under  and  by  virtue 
of  the  above-mentioned  judgment,  and  from  all  lien  or  encum- 
brance that  has  attached  to  the  same  by  reason  of  the  recovery  of 
the  said  judgment,  as  free  and  clear,  in  all  respects,  as  though 
said  judgment  had  not  been  rendered. 

No.  509. — Release,  Partial,  of  Mortgage. 

This  Indenture,  made  the  nineteenth  day  of  December,  1906, 
between  T.  H.,  of  the  city  of  New  York,  of  the  first  part,  and  ^V. 
L.  L.,  of  the  city  of  San  Francisco,  of  the  second  part: 

Whereas,  said  party  of  the  second  part,  by  indenture  of  mort- 
gage, bearing  date  the  fifteenth  day  of  Septemher,  1905,  and  re- 
corded in  the  office  of  the  county  recorder  of  the  city  and  county 
of  San  Francisco,  in  liher  No.  52,  of  Mortgages,  at  page  129,  Sep- 
tember, 18,  1905,  did,  for  the  consideration  and  for  the  purpose 
therein  mentioned,  mortgage  the  premises  therein  described. 

And  whereas,  the  said  party  of  the  second  part  has  on  the  day 
of  the  date  of  these  presents,  paid  to  the  said  party  of  the  first 
part  the  sum  of  eighteen  hundred  dollars,  gold  coin,  of  the  United 
States,  part  of  the  money  secured  by  the  mortgage  aforesaid,  as 
therein  specified. 

Now,  therefore,  this  indenture  witnesseth :  That  the  said  T.  E., 
party  of  the  first  part,  in  consideration  of  the  premises  and  the 
said  sum  of  eighteen  hundred  dollars,  duly  paid  to  the  said  party 
of  the  first  part  by  the  said  party  of  the  second  part,  at  the  time 
of  the  ensealing  and  delivery  of  these  presents,  the  receipt  where- 
of is  hereby  acknowledged,  does  by  these  presents  grant,  release, 
quitclaim,  and  set  over  unto  the  said  party  of  the  second  part,  his 
heirs  and  assigns,  all  that  part  of  the  said  mortgaged  lands, 
bounded  and  described  as  follows,  to  wit:   [Description.] 

Together  with  all  and  singular,  the  tenements,  hereditaments 
and  appurtenances  thereto  belonging  or  in  any  wise  appertain- 
ing; and  all  the  lien,  right,  title  and  interest  of  the  said  party 
of  the  first  part,  of,  in  and  to  the  same,  to  the  intent  that  the 
lands  hereby  conveyed  and  released  shall  forever  be  discharged 
from  the  said  mortgage,  and  that  the  rest  of  the  lands  in  the  said 
mortgage  specified  may  remain  to  the  said  party  of  the  first  part, 
as  heretofore. 

To  have  and  to  hold  the  lands  and  premises  hereby  conveyed 
and  released,  to  the  said  party  of  the  second  part,  his  heirs  and 
assigns  forever. 


Release — Will.  349 

No.  510. — Release  or  Satisfaction  of  Judgment. 

[Title  of  Court  and  Cause.] 

For  and  in  consideration  of  the  sum  of  eight  hundred  dollars, 
gold  coiv,  of  the  United  States,  to  me  paid  by  R.  R.,  the  defendant 
in  the  above-entitled  action,  full  satisfaction  is  hereby  acknowl- 
edged of  a  certain  judgment  rendered  and  entered  in  said  superior 
court  in  the  said  action,  on  the  tenth  day  of  September,  1905,  in 
favor  of  J.  D.,  the  plaintiff  in  the  said  action,  and  against  the 
said  defendant,  for  the  sum  of  seven  hundred  and  fifty  dollars, 
gold  coin  of  the  United  States,  with  interest  thereon  from  the 
tenth  day  of  September,  1906,  at  the  rate  of  seven  per  cent  per 
annum  until  paid,  together  with  said  plaintiff's  costs  and  dis- 
bursements, amounting  to  the  sum  of  forty-five  dollars,  and  re- 
corded in  book  D  of  Judgments,  at  page  432.  And  I  hereby  au- 
thorize and  direct  the  clerk  of  said  court  to  enter  satisfaction  of 
record  of  said  judgment  in  the  said  action. 

No.  511. — Release  of  Mortgage. 

Know  all  Men  by  these  Presents:  That  I,  J.  M.  C,  of 
Columbia,  Tuolumne  county,  state  of  California,  do  hereby  cer- 
tify and  declare  that  a  certain  mortgage  bearing  date  the  fourth 
day  of  March,  1905,  made  and  executed  by  J.  S.,  of  said  county, 
the  party  of  the  first  part  therein,  to  J.  H.  McK.  of  said  county, 
the  party  of  the  second  part  therein,  and  assigned  to  me  on  the 
third  d-ay  of  April,  1906,  by  the  said  J.  H.  McK.,  and  recorded 
in  the  office  of  the  county  recorder  of  the  said  county  of  Tuol- 
umne, in  book  5  of  Mortgages,  on  pages  24  and  25,  on  the  sixth 
day  of  March,  1905,  together  with  the  debt  thereby  secured,  is 
fully  paid,  satisfied,  and  discharged. 


WILL. 

What  Passes  by. — Property  of  every  description  may  be  ac- 
quired by  will :  Cal.  C.  C,  sec.  1000.  The  word  "will"  included 
"codicil":  Id.,  sec.  14. 

Demented  Person's  Will. — Any  person  may  make  a  will  and 
until  it  is  established  by  a  court's  judgment  that  he  was  not  of 
sound  mind  when  it  was  made,  the  law  presumes  that  his  mind 
was  always  sound.  The  statute  provides  that  "a  person  of 
unsound  mind  may  make  a  will  before  but  not  after  liis  in- 
capacity has  been  judicially  determined." 


350  New  Book  of  Forms. 

NOTE. — California,  C.  C,  sec.  40;  Alaska  Codes,  pt.  5,  c.  15,  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4662-4690,  vol.  3,  p.  1293;  Idaho, 
C.  C,  see.  19SS;  Moutana,  C.  C,  sec.  23;  New  Mexico,  Corap.  Laws,  sees. 
1846-2020;  North  Dakota,  C.  C,  sees.  3649-3683;  South  Dakota,  C.  C, 
sees.  998-1035. 

What  Passes  by. — Future  interests  pass  by  will,  and  succes- 
sion and  transfer  in  the  same  manner  as  present  interests. 

NOTE. — California,  C.  C,  sec.  699;  Alaska,  Codes,  pt.  5,  c.  15,  sees, 
137-167;  Arizona,  C.  C,  par.  727;  Colorado,  Mill's  Stats.,  sees.  4662-4690, 
vol.  3,  p.  1293;  Idaho,  C.  C,  sec.  2353;  Montana,  C.  C,  sec.  1120;  New 
Mexico,  Comp.  Laws,  sees.  1946-2020;  North  Dakota,  C.  C,  sees.  3649- 
3683;    South  Dakota,  C.  C,  sees.  998-1035. 

Liability  of  Devisee. — A  person  acquiring  property  by  will  is 
liable  to  the  extent  of  the  land  acquired  upon  any  covenant  or 
agreement  in  reference  to  the  title  of  or  to  the  property  made  by 
his  devisor,  to  the  extent,  of  the  land  in  question. 

NOTE. — California,  C.  C,  sec.  1115;  Alaska,  Codes,  pt.  5,  c.  15,  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4662-4690,  vol.  3,  p.  1293;  Mon- 
tana, C.  C,  sec.  1521;  Nevada,  Comp.  Laws,  see.  2687;  New  Mexico, 
Comp.  Laws,  sees.  1946-2020;  North  Dakota,  C.  C,  sees.  3649-3683;  South 
Dakota,  C.  C,  sees.  998-1035. 

Gifts  in  View  of  Death. — As  to  gifts  in  view  of  death,  they 
are  not  affected  by  a  previous  will,  nor  by  a  subsequent  will,  un- 
less the  will  expresses  an  intention  to  revoke  the  gift. 

NOTE. — California,  C.  C,  sec.  1152;  Alaska  Codes,  pt.  5,  e.  15,  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4662-4G90,  vol.  3,  p.  1293;  Mon- 
tana, C.  C,  sec.  1555;  North  Dakota,  C.  C,  sees.  3649-3683;  South  Da- 
kota, C.  C,  sees.  998-1035. 

Who  may  Make. — Every  person  over  the  age  of  eighteen 
years,  of  sound  mind,  may,  by  will,  dispose  of  all  his  estate, 
being  chargeable  in  both  cases  with  the  payment  of  all  his 
debts. 

NOTE. — California,  C.  C,  sec.  1270;  Alaska,  Codes,  pt.  5,  c.  15,  sees. 
137-167;  Arizona,  C.  C,  par.  4212;  Colorado,  Mill's  Stats.,  sees.  4662- 
4690,  vol.  3,  p.  1293;  Idaho,  C.  C,  sec.  2503;  Montana,  C.  C,  sec.  1720; 
Nevada,  Comp.  Laws,  sec.  3071;  New  Mexico,  Comp.  Laws,  sees.  1946- 
2020;  North  Dakota,  C.  C,  sees.  3G49-3683;  Oregon,  Codes  and  Statutes, 
sees.  5545,  5546;  South  Dakota,  C.  Co.,  sees.  198-1035;  Utah,  Rev.  Stats., 
sec.  2731;  Washington,  Ballingcr's  Codes,  sec.  4594;  Wyoming,  Rev. 
Stats.,  sec.  4565. 

Duress,  Menace,  Fraud. — A  will  procured  by  duress,  menace, 
fraud  or  undue  influence  is  void ;  and  a  revocation,  procured  by 
the  same  means,  is  void. 


WiLI.  351 

NOTE.— California,  C.  C,  sec.  1272;  C.  C.  P.,  sec.  1312;  .Maska,  Codes, 
pt.  5.  c.  15,  sees.  137-167;  Coloradn,  Mill's  Stats.,  sees.  4662-4090;  New 
Mexico,  Comp.  Laws,  sees.  1946-2020;  North  Dakota,  C.  C^  sees.  3649- 
3683;  South  Dakota,  C.  C,  sec.  1000. 

By  Married  Woman. — A  married  woman  may  dispose  of 
all  her  separate  estate  by  will,  without  the  consent  of  her  hus- 
band, and  may  alter  or  revoke  the  will  in  like  manner.  Her  will 
must  be  executed  and  proved  in  like  manner  as  other  wills. 

NOTE. — California,  C.  C,  see.  1273;  Alaska,  Codes,  pt  5,  c.  15,  sees. 
137-167;  Arizona,  C.  C,  par.  4229;  Colorado,  Mill's  Stats.,  sees.  4662- 
4690,  vol.  3,  p.  1293;  Idaho,  (J.  C,  sec.  2504;  Montana,  C.  C,  sec.  255; 
Nevada,  Comp.  Laws,  sec  3071;  New  Mexico,  Comp.  Laws,  sees.  1946- 
1020;  North  Dakota,  C.  C-,  sees.  3649-3683;  Oregon,  Codes  and  Statutes, 
Be*.  5547;  South  Dakota,  C.  C,  sees.  198-1035;  Wyoming,  Eev.  Stats., 
sec  2975. 

Who  may  Take  Under. — A  testamentary  disposition  may 
be  made  to  any  person  capable  by  law  of  taking  the  property  so 
disposed  of,  except  corporations  other  than  those  formed  for 
scientific,  literary  or  solely  educational  purposes. 

NOTE.— California,  C.  C,  sec.  1275;  Alaska,  Codes,  pt  5,  c  15,  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4662-4690,  vol.  3,  p.  1293;  Montana, 
C.  C,  sec.  1722;  New  Mexieo,  Comp.  Laws,  sees.  1946-2020;  North  Dakota, 
C.  C,  sees.  .3649-3683;  South  Dakota,  C.  C,  sees.  198-1035;  Utah,  Eev. 
Stats.,  sec  2734. 

Must  be  Written — Except — Execution  of. — Every  will, 
other  than  a  nuncupative  will,  must  be  in  writing;  and  every 
will,  other  than  a  holographic  will  and  a  nuncupative  will,  must 
be  executed  and  attested  as  follows:  i.  It  must  be  subscribed 
at  the  end  thereof  by  the  testator  himself,  or  some  person  in 
his  presence  and  by  his  direction  must  subscribe  his  name  there- 
to; 2.  The  subscription  must  be  made  in  the  presence  of  the 
attesting  witnesses,  or  be  acknowledged  by  the  testator  to  them, 
to  have  been  made  by  him  or  by  his  authority;  3.  The  testator 
must,  at  the  time  of  subscribing  or  acknowledging  the  same,  de- 
clare to  the  attesting  witnesses  that  the  instrument  is  his  will ; 
and,  4.  There  must  be  two  attesting  witnesses,  each  of  whom 
must  sign  his  name  as  a  witness  at  the  end  of  the  will,  at  the 
testator's  request,  and  in  his  presence. 

NOTE.— California,  C.  C,  sec.  1276;  Alaska,  Codes,  pt.  5,  c  15  sees 
137-167;  Arizona,  C.  C,  par.  4214;  Colorado,  Mill's  Stats.,  sees  '466"- 
4690.  vol.  3,  p.  1293;  Idaho,  C.  C.  sec.  2505;  Montana,  C.  C,  sec'.  1723; 
Nevada,  Comp.  Laws,  see.  3072;  New  Mexico,  Comp.  Laws,  sees  1946^ 
2020;  North  Dakota,  C.  C,  sees.  3649-3683;  Oregon,  Codes  and  Statutes 
sec.  5548;  South  Dakota,  C.  C,  sees.  998-1035;  Washington,  Ballinc'er's 
Codes,  sec.  4596;  Wyoming,  Rev.  Stats.,  sec.  4568. 


352  New  Book  of  Forms. 

Holographic. — A  holographic  will  is  one  that  is  entirely 
written,  dated  and  signed  by  the  hand  of  the  testator  himself. 
It  is  subject  to  no  other  form,  and  may  be  made  in  or  out  of 
this  state,  and  need  not  be  witnessed. 

NOTE. — California,  C.  C,  sec.  1277;  Arizona,  C.  C,  par.  421.5;  Idaho, 
C.  C,  sec.  2.506;  Montana,  C.  C,  see.  1724;  Nevada,  Comp.  Laws,  sees. 
2092,  3093;  Utah,  Rev.  Stats.,  sec.  2376. 

A  witness  to  a  written  will  must  write,  with  his  name,  his 
place  of  residence ;  and  a  person  who  subscribes  the  testator's 
name,  by  his  direction,  must  write  his  own  name  as  a  witness 
to  the  will.  But  a  violation  of  this  does  not  affect  the  validity 
of  the  will. 

NOTE. — California,  C.  C,  sec.  1278;  Alaska,  Codes,  pt.  5,  c.  15,  sees. 
137-167;  Colorado.  Mill's  Stats.,  sees.  4662-4690,  vol.  3,  p.  1293;  Idaho,  C. 
C,  sec.  2507;  Montana,  C.  C,  sec.  1725;  New  Mexico,  Comp.  Laws,  sees. 
1946-2020:  North  Dakota,  C.  C,  sees.  3649-3683;  Oregon,  Codes  and  Stat- 
utes, sec.  5548;  South  Dakota,  C.  C,  sees.  998-1035;  Utah,  Rev.  Stats.,  sec. 
2737;  Washington,  Ballinger's  Codes,  see.  4596. 

Mutual  or  Conjoint. — A  conjoint  or  mutual  will  is  valid, 
but  it  may  be  revoked  by  any  of  the  testators,  in  like  manner 
with  any  other  will. 

NOTE. — California,  C.  C,  ?ec.  1279;  Alaska,  Codes,  pt.  5,  e.  15,  sees. 
137-167;  Colorado.  Mill's  Stats.,  sees.  4290-4663,  vol.  3,  p.  1293;  Mon- 
tana, C.  C,  see.  1726;  New  Mexico,  Comp.  Laws,  sees.  1946-2020;  North 
Dakota,  C.  C,  sees.  3649-3683;  South  Dakota,  C.  C,  sees.  998-1035;  UtaJi, 
Eev.  Stats.,  sec.  2738. 

Who  may  Witness. — If  the  subscribing  witnesses  to  a  will 
are  competent  at  the  time  of  attesting  its  execution,  their  sub- 
sequent incompetency,  from  whatever  cause  it  may  arise,  does 
not  prevent  the  probate  and  allowance  of  the  will,  if  it  is  other- 
wise satisfactorily  proved. 

NOTE. — California,  C.  C,  sec.  1280;  Alaska,  Codes,  pt.  5,  c.  15,  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4290-4562,  vol.  3,  p.  1293;  Idaho, 
C.  C,  sec.  2508;  Montana,  C.  C.,  see.  1727;  New  Mexico,  Comp.  Laws, 
Bees.  1946-2020;  North  Dakota,  C.  C,  sees.  3649-3683;  South  Dakota,  C.  C, 
sees.  998-1038;  Utah,  Eev.  Stats.,  see.  2739;  Wyoming,  Rev.  Stats.,  sec. 
4568. 

Gift  to  Witness. — All  beneficial  devises,  legacies,  and  gifts 
made  or  given  to  a  subscribing  witness  are  void,  unless  there 
are  two  other  competent  subscribing  witnesses. 

NOTE. — California,  C.  C,  sec.  1282;  Alaska,  Codes,  pt.  5,  c.  15,  9e«8. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4290-4662,  voL  3,  p.  1293;  Montana, 


Will.  353 

C.  C,  sec.  1729;  Nevada,  Comp.  Laws,  sec.  3074;  New  IMexico,  Comp. 
Laws,  sees.  1946-2020;  North  Dakota,  C.  C,  sees.  3649-3683;  South  Da- 
kota, C.  C^  sees.  998-103.5;  Utah,  Rev.  Stats.,  sec.  2742;  Washington^ 
Ballinger's   Codes,   sec.   4607. 

Witness  may  Take  as  Heir  at  Law,  When. — If  a  witness, 
to  whom  any  beneficial  devise,  IcjE^acy  or  gift,  void  by  the  pre- 
ceding section,  is  made,  would  have  been  entitled  to  any  share 
of  the  estate  of  the  testator,  in  case  the  will  should  not  be  estab- 
lished, he  succeeds  to  so  much  of  the  share  as  would  be  dis- 
tributed to  him  not  exceeding  the  devise  or  bequest  made  to  hirri 
in  the  will,  and  he  may  recover  the  same  of  the  other  devisees  or 
legatees  named  in  the  will,  in  proportion  to  and  out  of  the  parts 
devised  or  bequeathed  to  them. 

NOTE.— California,  C.  C,  sec.  1283;  Alaska,  Cnrles,  pt.  5,  c.  15.  sees. 
137-167;  Arizona,  C.  C.  par.  4227;  Colorado,  Mill's  Stats.,  sees.  4290- 
4662,  vol.  3,  p.  1293;  Montana,  C.  C,  sec.  1730;  New  Mexico,  Comp. 
Laws,  sees.  1946-2020;  North  Dakota.  C.  C,  sees.  3649-3683;  Oregon, 
Codes  and  Statutes,  sec.  5.565;  South  Dakota,  C.  C,  sees.  998-1035; 
Utah,  Rev.  Stats.,  sec.  2743;  Washington,  Ballinger's  Codes,  sec.  4607. 

Foreign  Wills. — A  will  made  out  of  this  state  is  valid  as 
a  will  in  this  state,  if  executed  according  to  the  provisions  of 
the  laws  of  California,  or  according  to  the  laws  of  the  domicile 
of  the  maker. 

NOTE.— California,  C.  C.  P.,  see.  1322;  C.  C,  sec.  1285;  Alaska,  Codes, 
pt.  5,  c.  15.  sees.  137-167;  Colorado.  Mill's  Stats.,  sees.  4290-4662.  vol.  3, 
p.  1300;  Montana.  C.  C,  sec.  1731;  New  Mexico,  Comp.  Laws.  sees.  1946- 
2020;  North  Dakota,  C.  C,  sec.  3652;  Oregon.  Codes  and  Statutes,  sec. 
5561;   South  Dakota,  C.  C,  sees.   998-1035;  Utah,  Rev.  Stats.,  sec.  2744. 

Codicil — Effect  on  Will. — The  execution  of  a  codicil,  re- 
ferring to  a  previous  will,  has  the  effect  to  republish  the  will,  as 
modified  by  the  codicil. 

NOTE.— California.  C.  C,  sec.  1287;  Alaska.  Codes,  pt.  5,  c.  15,  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4290-4662,  vol.  3.  p.  1293;' Mon- 
tana, C.  C,  sec.  1733;  New  Mexico,  Comp.  Laws,  sees.  1946-2020;  North 
Dakota,  C.  C,  sees.  3649-3680;  South  Dakota,  C.  C,  sees.  998-1035;  Utah, 
Rev.  Stats.,  sec.  2745. 

Wills  may  be  Oral,  When. — A  nuncupative  will  is  not  re- 
quired to  be  in  writing,  nor  to  be  declared  or  attested  with  anv 
formalities.  To  make  a  nuncupative  will  valid,  and  to  entitle 
it  to  be  admitted  to  probate,  the  following  requisites  must  be 
observed:  i.  The  estate  bequeathed  must  not  exceed  in  value 
the  sum  of  one  thousand  dollars ;  2.  It  must  be  proved  by  two 
witnesses  who  were  present  at  the  making  thereof,  one  of  whom 
New  Forms — 23 


354  New  Book  of  Forms. 

was  asked  by  the  testator,  at  the  time,  to  bear  witness  that  such 
was  his  will,  or  to  that  effect;  3.  The  decedent  must,  at  the 
time,  have  been  in  actual  military  service  in  the  field,  or  doing 
duty  on  shipboard  at  sea,  and  in  either  case  in  actual  contem- 
plation, fear  or  peril  of  death ;  or  the  decedent  must  have  been, 
at  the  time,  in  expectation  of  immediate  death  from  an  injury 
received  the  same  day. 

No  proof  must  be  received  of  any  nuncupative  will,  unless  it 
is  offered  within  six  months  after  speaking  the  testamentary 
words,  nor  imlcss  the  words,  or  the  substance  thereof,  were  re- 
duced to  writing  within  thirty  days  after  they  were  spoken. 

NOTE.— California,  C.  C,  sees.  1288-1290;  C.  C.  P.,  see.  1344;  Alaska, 
Codes,  pt.  5,  c.  15.  sees.  137-lfi7:  Arizona,  C.  C,  pars.  4217,  4219,  4221; 
Colorado,  Mill's  Stats.,  sees.  4662-4690,  vol.  3,  p.  1293;  Montana,  C.  C, 
sees.  1734.  173.5;  Nevada,  Comp.  Laws,  sec.  3075;  New  Mexico,  Comp. 
Laws,  sees.  1946-2020;  North  Dakota,  C.  C.  sees.  3649-3683;  Oregon, 
Codes  and  Statutes,  sec.  5558;  South  Dakota.  C.  C,  sees.  998-1035;  Utah, 
Eev.  Stats.,  sees.  2746,  2747;  "Washington,  Ballinger's  Codes,  sec.  4605; 
Wyoming,   Eev.   Stats.,   sec.   4598. 

Probate  of  Oral  Wills. — Probate  of  a  nuncupative  will  must 
be  granted  for  fourteen  days  after  the  death  of  the  testator, 
nor  must  any  nuncupative  will  be  at  any  time  proved,  unless  the 
testamentary  words,  or  the  substance  thereof,  be  first  committed 
to  writing,  and  process  issued  to  call  in  the  widow,  or  other 
persons  interested,  to  contest  the  probate  of  such  will,  if  they 
think  proper:  C.  C.  P.,  sec.  1345. 

NOTE.— California,  C.  C.  P.,  see.  1345;  C.  C,  sec.  1201;  Alaska.  Codes, 
pt.  5,  c.  15,  sees.  137-167;  Arizona,  C.  C,  pars.  1634-4219;  Colorado, 
Mill's  Stats.,  sees.  4662-4690,  vol.  3.  p.  1283:  Idaho.  C.  C,  sec.  4029;  Mon- 
tana, C.  C.  P.,  sec.  2381;  New  Mexico,  Comp.  Laws,  sees.  1946-1950; 
North  Dakota,  C.  C,  sees.  3649-3683;  South  Dakota,  C.  C,  sees.  998-1035; 
Wyoming,  Rev.  Stats.,  sec.  4599. 

Revocation  of  Written. — No  written  will,  nor  any  part 
thereof,  can  be  revoked  or  altered  otherwise  than :  i.  By  a  writ- 
ten will,  or  other  writing  of  the  testator,  declaring  such  revoca- 
tion or  alteration,  and  executed  with  the  same  formalities  with 
which  a  will  should  be  executed  by  such  testator;  or  2.  Bv  being 
burned,  torn,  canceled,  obliterated  or  destroyed,  with  the  intent 
and  for  the  purpose  of  revoking  the  same,  by  the  testator  him- 
self, or  by  some  person  in  his  presence  and  by  his  direction. 

NOTE. — California,  C.  C,  slc.  1292;  Alaska,  Codes,  pt.  5,  c.  15,  sees. 
137-167;  Arizona,  C.  C,  par.  4216;  Colorado,  Mill's  Stats.,  sees.  4662- 
4690,  vol.  3,  p.  1293;  Idaho,  C.  C,  see.  2509;  Montana,  C.  C,  see.  1738; 
Nevada,  Comp.  Laws,  sec.  3078;  New  Mexico,  Comp.  Laws,  sees.  1946- 
2020;  North  Dakota,  C.  C,  sees.  3649-3683;  Oregon,  Codes  and  Stat- 
utes, sec.  792;  South  Dakota,  C.  C,  sees.  998-1035;  Utah,  Rev.  Stats., 
*ec.  2749;  Washington,  Ballinger's  Codes,  sec.  4569. 


Will.  355 

Destruction  of  Proved. — When  a  will  is  canceled  or  de- 
stroyed by  any  other  person  than  the  testator,  the  direction  of 
the  testator  and  the  fact  of  such  injury  or  destruction  must  be 
proved  by  two  witnesses. 

NOTE.— California,  C.  C,  sec.  1293;  Alaska,  Codes,  pt.  5,  c  15,  sees. 
137-167;  Colorado.  Mill's  Stats.,  sees.  4662-4690;  vol.  3,  p.  1293;  Idaho, 
C.  C,  sec.  2510;  Montana,  C.  C,  sec.  1738;  New  Mexico.  Comp.  Lawsi 
sees.  1946-2020;  North  Dakota,  C.  C,  sees.  3649-36S3;  South  Dakota, 
C.  C,  sees.  998-1035;  Utah,  Rev.  Stats.,  sec.  2750. 

Duplicate  Revoked. — The  revocation  of  a  will,  executed 
in  duplicate,  may  be  made  by  revoking  one  of  the  duplicates. 

NOTR.— California,  C.  C,  sec.  1295;  Alaska,  Codes,  pt.  5*,  c.  15.  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4662-4690.  vol.  3,  p.  1293;  Idaho, 
C.  C,  see.  2512;  Montana,  C.  C,  sec.  1740;  New  Mexico,  Comp.  Laws,  sees' 
1946-2020;  North  Dakota,  C.  C,  sees.  3649-3683;  South  Dakota,  C.  C. 
sees.   998-1035;  Utah,  Eev.  Stats.,  sec.   2751. 

Effect  of  Subsequent,  Upon  Prior. — A  prior  will  is  not  re- 
voked by  a  subsequent  will,  unless  the  latter  contains  an  express 
revocation,  or  provisions  wholly  inconsistent  with  the  terms  of 
the  former  will ;  but  in  other  cases  the  prior  will  remains  effectual 
so  far  as  consistent  with  the  provisions  of  the  subsequent  will. 

NOTE.— California.  C.  C,  sec.  1296;  Alaska.  Codes,  pt.  5,  c.  15,  sees 
137-167;  Colorado,  Mill's  Stats.,  sees.  4662-4690,  vol.  3,  p.  1293; 'Mon- 
tana, C.  C,  sec.  1741;  New  Mexico,  Comp.  Laws,  sees.  1946-2020:  North 
Dakota,  C.  C,  sees.  3649-3683;  South  Dakota,  C.  C,  sees.  998-1035; 
Utah,  Rev.  Stats.,  sec.  2756. 

A  Second  Will  Revives  the  First  When. — If,  after  making 
a  will,  the  testator  makes  and  executes  a  second  will,  the  de- 
struction, cancellation  or  revocation  of  such  second  will  does 
not  revive  the  first  will,  unless  it  appears  by  the  terms  of  such 
revocation  that  it  was  the  intention  to  revive  and  give  effect  to 
the  first  will,  or  unless,  after  such  destruction,  cancellation  or 
revocation,  the  first  will  is  duly  republished. 

NOTE.— California,  C.  C,  see.  1297;  Alaska,  Codes,  pt.  5.  c  15  sees 
137-167;  Colorado.  Mill's  Stats.,  sees.  4662-4690,  vol.  3.  p.  1293-  Idaho' 
C.  C,  see.  2512;  Montana,  C.  C,  see.  1742;  Nevada,  Comp.~Laws,  sec! 
3079;  New  Mexico,  Comp.  Laws,  sees.  1946-2020;  North  Dakota,  C.  C^ 
sees.  3649-3683;  Oregon,  Codes  and  Statutes,  sec.  5557;  South  Dakota] 
O.  C,  sees.  998-1035;  Utah,  Rev.  Stats.,  sec.  2753;  Washington,  Ballin- 
ger's  Codes,  sec.  4604. 

Revocation  by  Marriage  as  to  Issue  of. — If,  after  having 
made  a  will,  the  testator  marries,  and  has  issue  of  such  mar- 
riage, born  either  in  his  lifetime  or  after  his  death,  and  the  wife 


356  New  Book  of  Forms. 

or  issue  sun-ivcs  him,  the  will  is  revoked,  unless  provision  has 
been  made  for  such  issue  by  some  settlement,  or  unless  such 
issue  are  provided  for  in  the  v^ill,  or  in  such  v^ay  mentioned 
therein  as  to  show  an  intention  not  to  make  such  provision ; 
and  no  other  evidence  to  rebut  the  presumption  of  such  revoca- 
tion can  be  received. 

NOTE.— California,  C.  C,  sec.  1298,-  Alaska,  Codes,  pt.  5,  c.  15,  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4662-4690,  vol.  3,  p.  1298;  Idaho, 
(  C,  sec.  2513;  Montana,  C.  C,  sec.  1743;  New  Mexico,  Comp.  Laws, 
sees.  1946-2020;  North  Dakota,  C.  C,  sees.  3649-3683;  Oregon,  Codes 
and  Statutes,  sec.  5550;  South  Dakota,  C.  C,  sees.  998-1035. 

Revocation  of  by  Marriage. — If,  after  making  a  will,  the 
testator  marries,  and  the  wife  survives  the  testator,  the  will  is 
revoked,  unless  provision  has  been  made  for  her  by  marriage 
contract,  or  unless  she  is  provided  for  in  the  will,  or  in  such 
way  mentioned  therein  as  to  show  an  intention  not  to  make  such 
provision ;  and  no  other  evidence  to  rebut  the  presumption  of 
revocation  must  be  received. 

NOTE. — California,  C.  C,  see.  1299;  Alaska,  Codes,  pt.  5,  c.  15,  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4662-4690,  vol.  3,  p.  1293;  Idaho, 
C.  C,  see.  2514;  Montana,  C.  C,  see.  1744;  New  Mexico,  Comp.  Laws, 
sees.  1946-2020;  North  Dakota,  C.  C,  sees.  3649-3683;  South  Dakota, 
C.  C,  sees.  998-1035;  Utah,  Eev.  Stats.,  sec.  2754. 

Unmarried  Woman's  Will, — A    will  executed  by  an  unmar 
ried  woman  is  revoked  by  her  subsequent  marriage,  and  is  not 
revived  by  the  death  of  her  husband. 

NOTE. — California,  C.  C,  sec.  1300;  Alaska,  Codes,  pt.  5,  e.  15,  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4662-4690,  vol.  3,  p.  1293;  Idaho, 
C.  C,  sec.  2515;  Montana,  C.  C,  sec.  1745;  Nevada,  Comp.  Laws,  sees. 
3080,  3081;  North  Dakota,  C.  C,  sees.  3649-3683;  Oregon,  Codes  and 
Statutes,  sec.  5551;  South  Dakota,  C.  C,  sees.  998-1035;  Washington, 
Ballinger's  Codes,  sec.  4598. 

Contracts  to  Convey  not  Canceled  by  Deaths. — An  agree- 
ment made  by  a  testator,  for  the  sale  or  transfer  of  property  dis- 
posed of  by  a  will  previously  made,  does  not  revoke  such  dis- 
posal ;  but  the  property  passes  by  the  will,  subject  to  the  same 
remedies  on  the  testator's  agreement,  for  a  specific  performance 
or  otherwise  against  the  devisees  or  legatees,  as  might  be  had 
against  the  testator's  successors,  if  the  same  had  passed  by  suc- 
cession. 

NOTE. — California,  C.  C,  sec.  1301;  Alaska,  Codes,  pt.  5,  c.  15,  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4662-4690,  vol.  3,  p.  1293;  New 
Mexico,  Comp.  Laws,  sees.  1946-2020;  North  Dakota,  C.  C,  sees.  3649- 
3683;  South  Dakota,  C.  C,  sees.  998-1035. 


WihU  357 

Encumbrance  not  a  Revocation. — A  charge  or  encumbrance 
upon  any  estate,  for  the  purpose  of  securing  the  payment  of 
money  or  the  performance  of  any  covenant  or  agreement,  is  not 
a  revocation  of  any  will  relating  to  the  same  estate  which  was 
previously  executed ;  but  the  devise  and  legacies  therein  con- 
tained must  pass,  subject  to  such  charge  or  encumbrance. 

NOTK — California,  C.  C,  sec.  1302;  Alaska,  Codes,  pt.  5,  c.  15,  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4662-4690,  vol.  3,  p.  1293;  Idaho. 
C.  C,  sec.  2517;  Montana,  C.  C,  sec.  1747;  Nevada,  Comp.  Laws,  sec.  3083; 
New  Mexico,  Comp.  Laws,  sees.  1946-2020;  North  Dakota,  C.  C,  sees. 
3649-3683;  Oregon,  Codes  and  Statutes,  sec.  555.T:  South  Dakota,  C.  C, 
sees.  998-1035;  Utah,  Eev.  Stats.,  sec.  2756;  Washington,  Ballinger's 
Codes,  sec.  4600. 

Conveyance — Effect  of  Will  on. — A  conveyance,  settle- 
ment, or  other  act  of  a  testator,  by  which  his  interest  in  a  thing 
previously  disposed  of  by  his  will  is  altered,  but  not  wholly 
devested,  is  not  a  revocation ;  but  the  will  passes  the  property 
which  would  otherwise  devolve  by  succession. 

NOTE. — California,  C.  C,  sec.  1303;  Alaska,  Codes,  pt.  5,  c.  15,  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4662-4690,  vol.  3,  p.  1293;  Idaho, 
C.  C,  sec.  2518;  Montana,  C.  C.,  sec.  1746;  New  Mexico,  Comp.  Laws, 
sees.  1946-2020;  North  Dakota,  C.  C,  sees.  3649-3683;  South  Dakota,  C. 
C,  sees.  998-1035;   Utah,  Eev.  Stats.,  sec.  2755. 


Will  Revoked  Kills  Codicil. — The  revocation  of  a  will  re- 
vokes all  its  codicils. 

NOTE. — California,  C.  C,  sec.  1305;  Alaska,  Codes,  pt.  5,  c.  15.  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4662-4690,  vol.  3.  p.  1293;  Idaho, 
C.  C,  sec.  2520;  Montana,  C.  C,  sec.  1750;  New  Mexico,  Comp.  Laws,' 
Bees.  1946-2020;  North  Dakota,  C.  C,  sees.  3649-3683;  South  Dakota,  a 
d,  sees.  998-1035;  Utah,  Eev.  Stats.,  sec.  2759. 

Revocation  a  Question  of  Law  and  Fact. — If  the  instru- 
ment by  which  an  alteration  is  made  in  the  testator's  interest  in 
a  thing  previously  disposed  of  by  his  will  expresses  his  intent 
that  it  shall  be  a  revocation,  or  if  it  contains  provisions  wholly 
inconsistent  with  the  terms  and  nature  of  the  testamentary  dis- 
position, it  operates  as  a  revocation  thereof,  unless  such  incon- 
sistent provisions  depend  on  a  condition  or  contingency  by  reason 
of  which  they  do  not  take  effect. 

NOTE. — California,  C.  C,  sec.  1304;  Alaska,  Codes,  pt.  5,  e.  15,  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4662-4690,  vol.  3,  p.  1293;  Idaho', 
C.  C,  sec.  2519;  Montana,  C.  C,  sec.  1749;  New  Mexico,  Comp.  Laws,' 
sees.  1946-2020;  North  Dakota,  C.  C,  sees.  3649-3683;  South  Dakota! 
aC^    sees.  998-1035;  Utah,  Eev.  Stats.,  sec.  2758. 


358  New  Book  of  Forms. 

Children  Born  After  Date  of. — Whenever  a  testator  has  a 
child  born  after  the  making  of  his  will,  either  in  his  lifetime  or 
after  his  death,  and  dies  leaving  such  child  unprovided  for  by 
any  settlement,  and  neither  provided  for  nor  in  any  way  men- 
tioned in  his  will,  the  child  succeeds  to  the  same  portion  of  the 
testator's  real  and  personal  property  that  he  would  have  suc- 
ceeded to  if  the  testator  had  died  intestate. 

NOTE. — California,  C.  C,  sec.  1306;  Alaska,  Codes,  pt.  5,  c.  15,  sees. 
137-167;  Arizona,  C.  C,  pars.  4222-4225;  Colorado.  Mill's  Stats.,  sees. 
4662-4690,  vol.  3,  p.  1293;  Idaho,  C.  C,  sec.  2521;  Montana,  C.  C,  sec. 
1751;  Nevada,  Comp.  Laws,  sec.  3084;  New  Mexico,  Comp.  Laws,  sees. 
1946-2020;  North  Dakota,  C.  C,  sees.  3649-3680;  South  Dakota,  C.  C, 
sees.  998-1035;  Utah,  Eev.  Stats.,  sec.  2760;  Wyoming,  Eev.  Stats.,  sec. 
4859. 

Children  Omitted  from. — When  any  testator  omits  to  pro- 
vide in  his  will  for  any  of  his  children,  or  for  the  issue  of  any 
deceased  child,  unless  it  appears  that  such  omission  was  inten- 
tional, such  child,  or  the  issue  of  such  child,  must  have  the  same 
share  in  the  estate  of  the  testator  as  if  he  had  died  intestate,  and 
succeeds  thereto  as  provided  in  the  preceding  section. 

NOTE. — California,  C.  C,  sec.  1307;  Alaska,  Codes,  pt.  5,  c.  15,  sees, 
137-167;  Arizona,  C.  C,  par.  4226;  Colorado,  Mill's  Stats.,  sees.  4662-4690, 
vol.  3,  p.  1293;  Idaho,  C.  C,  sec.  2522;  Montana,  C.  C,  sec.  1752; 
Nevada,  Comp.  Laws,  sec.  3085;  New  Mexico,  Comp.  Laws,  sees.  1946- 
2020;  North  Dakota,  C.  C,  sees.  3649-3683;  Oregon,  Codes  and  Statutes, 
sec.  5554;  South  Dakota,  C.  C,  sees.  998-1035;  Utah,  Eev.  Stats.,  sec. 
2767;   Washington,  Ballinger's  Codes,  sec.  4601. 

Omitted  Child — Intention  Governs. — When  any  share  of 
the  estate  of  a  testator  is  assigned  to  a  child  born  after  the  mak- 
ing of  a  will,  or  to  a  child,  or  the  issue  of  a  child,  omitted  in 
the  will,  as  hereinbefore  mentioned,  the  same  must  first  be  taken 
from  the  estate  not  disposed  of  by  the  will,  if  any ;  if  that  is  not 
sufficient,  so  much  as  may  be  necessary  must  be  taken  from  all 
the  devisees  or  legatees,  in  proportion  to  the  value  they  may  re- 
spectively receive  under  the  will,  unless  the  obvious  intention 
of  the  testator  in  relation  to  some  specific  devise  or  bequest,  or 
other  provision  in  the  will,  would  thereby  be  defeated ;  in  such 
case,  such  specific  devise,  legacy,  or  provision  may  be  exempted 
from  such  apportionment,  and  a  different  apportionment,  con- 
sistent with  the  intention  of  the  testator,  may  be  adopted. 

NOTE. — California,  C.  C,  sec.  1308;  Alaska,  Codes,  pt.  5,  c.  15,  sees. 
337-167;  Arizona,  C.  C,  par.  4226;  Colorado,  Mill's  Stats.,  sees.  4662- 
4690,  vol.  3,  p.  1293;  Idaho,  C.  C,  sec.  2523;  Montana,  C.  C,  sec.  1756; 
Nevada,  Comp.  Laws,  Fee.  3086;  New  Mexico,  Comp.  Laws,  sees.  1946- 
2020;  North  Dakota,  C.  C,  sees.  3649-3683;  South  Dakota,  C.  C,  sees. 
998-1035;   Utah,  Eev.  Stats.,  sec.   2762. 


Will.  359 

Children  Provided  for  in  Lifetime. — If  such  children,  or 
their  descendants,  so  unprovided  for,  had  an  equal  proportion 
of  the  testator's  estate  bestowed  on  them  in  the  testator's  life- 
time, by  way  of  advancement,  they  take  nothing  in  virtue  of 
the  provisions  of  the  three  preceding  sections. 

NOTE. — California,  C.  C,  sec.  1309;  Alaska,  Codes,  pt.  5,  c.  15,  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4-662-4690,  vol.  3,  p.  1290;  Idaho, 
C.  C,  sec.  2524;  Montana,  C.  C,  sec.  1754;  Nevada,  Comp.  Laws,  sec. 
3087;  New  Mexico,  Comp.  Laws,  sees.  1946-2020;  North  Dakota,  C.  C, 
Bees.  3649-3683;  Oregon,  Codes  and  Statutes,  see.  5555;  South  Dakota, 
C.  C,  sees.  998-1635;  Utah,  Rev.  Stats.,  sec.  27G3;  Washington,  Ballin- 
ger's  Codes,  sec.  4602. 

Death  of  Devisee  Prior  to  Devisor. — When  any  estate  is 
devised  to  any  child,  or  other  relation  of  the  testator,  and  the 
devisee  dies  before  the  testator,  leaving  lineal  descendants,  such 
descendants  take  the  estate  so  given  by  the  will,  in  the  same  man- 
ner as  the  devisee  would  have  done  had  he  survived  the  testator. 

NOTE. — California,  C.  C,  sec.  1310;  Alaska,  Codes,  pt.  5,  c.  15,  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4662-4690,  vol.  3,  p.  1293;  Idaho, 
C.  C,  sec.  2525;  Montana,  C.  C.,  sec.  1755;  Nevada,  Comp.  Laws,  sec. 
3088;  New  Mexico,  Comp.  Laws,  sees.  1944-2020;  North  Dakota,  C.  C, 
sees.  3649-3683;  Oregon,  Codes  and  Statutes,  sec.  5556;  South  Dakota, 
C.  C,  sees.  998-1035;  Utah,  Kev.  Stats^  sec.  2764;  Washington,  Bal- 
linger's  Codes,  sec.  4603. 

What  Passes  by. — Every  devise  of  land  in  any  will  conveys 
all  tlie  estate  of  the  devisor  therein  which  he  could  lawfully  de- 
vise, unless  it  clearly  appears  by  the  will  that  he  intended  to 
convey  a  less  estate. 

NOTE. — California,  C.  C,  sec.  1311;  Alaska,  Codes,  pt.  5.  c.  15.  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4662-4690,  vol.  3,  p.  1293;  Idaho, 
C.  C,  sec.  2526;  Montana,  C.  C,  sec.  1756;  Nevada,  Comp.  Laws,  sec. 
3089;  New  Mexico,  Comp.  Laws,  sees.  1946-2020;  North  Dakota,  C.  C, 
sees.  3649-3683;  South  Dakota,  C.  C,  sees.  998-1035;  Utah,  Eev.  Stats., 
sec.  2765;  Washington,  Ballinger's  Codes,  sec  4608;  Wyoming,  Kev. 
Stats.,  sec.  4566. 

After-acquired  Lands  Pass  by. — Any  estate,  right  or  inter- 
est in  lands  acquired  by  the  testator  after  the  making  of  his  will 
passes  thereby  and  m  like  manner  as  if  title  thereto  was  vested 
in  him  at  the  time  of  making  the  will,  unless  the  contrary  mani- 
festly appears  by  the  will  to  have  been  the  intention  of  the  tes- 
tator. Every  will  made  in  express  terms  devising,  or  in  any 
other  terms  denoting  the  intent  of  the  testator  to  devise  all  the 
real  estate  of  such  testator,  passes  all  the  real  estate  which  such 
testator  was  entitled  to  devise  at  the  time  of  his  decease. 


26o  New  Book  of  Forms. 

NOTE.— California,  C.  C,  see.  1312;  Alaska,  Codes,  pt.  5,  c.  15,  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4662-4690,  vol.  3,  p.  1293;  Idaho, 
Li.  C,  sec.  2527;  Montana,  C.  C,  sec.  1757;  Nevada,  Comp.  Laws,  sec. 
3090-  New  Mexico,  Comp.  L.aws,  sees.  1946-2020;  North  Dakota,  C.  C, 
sees  3649-3683;  Oregon,  Codes  and  Statutes,  see.  2573;  South  Dakota, 
C.  C,  sees.  998-1035;  Utah,  Rev.  Stats.,  see.  2766;  Wyoming,  Rev.  Stats., 
sec.  4657. 

Devises  in  Trust,  etc. — No  estate,  real  or  personal,  may 
be  bequeathed  or  devised  to  any  charitable  or  benevolent  society, 
or  corporation,  or  to  any  person  or  persons  in  trust  for  charitable 
uses,  except  the  same  be  done  by  will  duly  executed  at  least 
thirty  days  before  the  decease  of  the  testator;  and  if  so  made, 
at  least  thirty  days  prior  to  such  death,  such  devise  or  legacy, 
and  each  of  them,  shall  be  valid ;  provided,  that  no  such  devises 
or  bequests  shall  collectively  exceed  one-third  of  the  estate  of 
the  testator  leaving  legal  heirs,  and  in  such  case  a  pro  rata  re- 
duction from  such  devises  or  bequests  shall  be  made  so  as  to 
reduce  the  aggregate  thereof  to  one-third  of  svich  estate;  and 
all  dispositions  of  property  made  contrary  hereto  shall  be  void, 
and  go  to  the  residuary  legatee  or  devisee,  next  of  kin,  or  heirs, 
according  to  law. 

NOTE. — California,  C.  C,  see.  1313;  Alaska,  Codes,  pt.  5,  e.  15,  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4662-4690,  vol.  3,  p.  1293;  Idaho, 
C.  C,  see.  2528;  Montana,  C.  C,  sees.  1758,  1759;  New  Mexico,  Comp. 
Laws,  sees.  1946-2020;  North  Dakota,  C.  C,  sees.  3649-3683. 

All  Children  Share  Alike. — A  child  conceived  before,  but 
not  born  until  after,  a  testator's  death,  takes  the  same  as  if  he 
was  alive  at  his  parent's  death. 

NOTE. — California,  C.  C,  see.  1339;  Alaska,  Codes,  pt.  5,  e.  15,  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4662-4690,  vol.  3,  p.  1293;  Mon- 
tana, C.  C,  see.  1792;  New  Mexico,  Comp.  Laws,  sees.  1946-2020;  North 
Dakota,  C.  C,  sees.  3649-3683;  South  Dakota,  C.  C,  sees.  998-1035;  Utah, 
Rev.  Stats.,  see.  2789. 

Words  of  Donation — What  are. — A  testamentary  disposi- 
tion to  "heirs,"  "relations,"  "nearest  relations,"  "representatives," 
"legal  representatives"  or  "personal  representatives,"  or  "fam- 
ily," "issue,"  "descendants,"  "nearest,"  or  "next  of  kin,"  of  any 
person,  without  other  words  of  qualification,  and  when  the  terms 
are  used  as  words  of  donation,  and  not  of  limitation,  vests  the 
property  in  those  who  would  be  entitled  to  succeed  to  the  prop- 
erty of  such  persons. 

NOTE. — California,  C.  C,  see.  1334;  Alaska,  Codes,  pt.  5,  e.  15,  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4062-4690,  vol.  3,  p.  1293;  Idaho, 
C.  C,  see.  2519;  Montana,  C.  C,  sec.  2758;  Nevada,  Comp.  Laws,  sec. 
1749;  New  Mexico,  Comp.  Laws,  sees.  1946-2020;  North  Dakota,  C.  C, 
gees.' 3649-3683;    South  Dakota,   C.  C,  sees.  998-1035. 


Will.  361 

Modes  of  Interpreting. — Of  two  modes  of  interpreting:^  a 
will,  that  is  to  be  preferred  which  will  prevent  a  total  intestacy. 
Technical  words  in  a  will  are  to  be  taken  in  their  technical  sense, 
unless  the  context  clearly  indicates  a  contrary  intention.  Tech- 
nical words  are  not  necessary  to  give  effect  to  any  species  of 
disposition  by  a  will.  The  term  "heirs,"  or  other  words  of  in- 
heritance, are  not  requisite  to  devise  a  fee,  and  a  devise  of  real 
property  passes  all  of  the  estate  of  the  testator,  unless  otherwise 
^jmited. 

NOTE.— California,  C.  C,  sees.  1326-1329;   Alaska,  Codes,  pt.  5,  c.   15, 
Bees.    137-167;    Colorado,   Mill's   Stats.,   sees.   4662-4690,    vol.    3,   p.    1293 
Montana,  C.  C,  sec.   1779;   New   Mexico,   Comp.   Laws,   sees.    1946-2020 
North  Dakota,  C.  C,  sees.  .'?649-3683;  South  Dakota,  C.  a,  sees.  998-1035 
Utah,  Eev.  Stats.,  sec.  2776. 

The  'tested"  not  "Devested"  Unless.— Th€  testamentary 
disposition,  when  vested,  cannot  be  devested  unless  upon  the 
occurrence  of  the  precise  contingency  prescribed  by  the  testator 
for  that  purpose;  and  if  a  devisee  or  legatee  dies  during  the  life- 
time of  the  testator,  the  testamentary  disposition  to  him  fails, 
unless  an  intention  appears  to  substitute  some  other  in  his  place. 

NOTE.— California,  C.  C,  sec.  1343;  Alaska,  Codes,  pt.  5,  c.  1.5,  sees 
137-167;  Colorado,  Mill's  Stats.,  sees.  4662-4690,  vol.  3,  p.  1293;  Montana, 
C.  C,  sec.  1796;  New  Mexico,  Comp.  Laws,  sees.  1946-2020;  North  Da- 
kota, C.  C,  sees.  3649-3683;  South  Dakota,  C.  C,  sees.  998-1035;  Utah. 
Eev.   Stats.,  sec.   2793. 

Death  of  Devisee — Quo  Ad  Hoc  Remainderman. — The 
death  of  a  devisee  or  legatee  of  a  limited  interest  before  the 
testator's  death  does  not  defeat  the  interests  of  persons  in  re- 
mainder, who  survive  the  testator. 

NOTE.— California,  C.  C,  see.  1344;  Alaska,  Codes,  pt.  5,  c.  15,  sees. 
137-167;  Colorado,  Mill's  Stats.,  sees.  4662-4690,  vol.  3,  p.  1293;  Montana, 
C.  C,  sec.  1797;  Now  Mexico,  Comp.  Laws,  sees.  1946-2020;  North  Dakota! 
C.  C,  sees.  3649-3683;  South  Dakota,  C.  O,  sees.  998-1035;  Utah,  licv. 
Stats.,  sec.  2794. 


362  New  Book  of  Forms. 

WILL,  DISPOSITION  OF  PROPERTY  BY. 


No.  512.— Will. 

In  the  Nami;  of  God,  Amen.  I,  P.  C,  of  the  city  and  county 
of  Sacramento,  state  of  California,  of  the  age  of  forty-five  }'ears, 
and  being  of  sound  and  disposing  mind  and  memory,  and  not 
acting  under  duress,  menace,  fraud,  or  undue  influence  of  any 
person  whatever,  do  make,  publish,  and  declare  this  my  last  will 
and  testament,  in  manner  following,  that  is  to  say: 

First.  /  direct  that  my  body  be  cremated,  so  that  it  m.ay  not 
be  a  source  of  disease,  through  its  poisoning  of  the  zvaters  zvJien 
its  tenant,  I  fwpe,  will  be  better  hotised.  In  preparing  my  body 
for  cremation,  select  the  m.ost  expensive  dressings  and  funeral 
trappings  my  estate  can  afford;  then  wrap  my  body  in  a  simple 
sheet  (or  th-e  like) ;  then  give  the  price  of  zvhat  they  selected  to 
the  Children's  Hospital,  corner  of  California  and  Maple  street, 
San  Francisco,  California. 

Secondly.  /  direct  that  my  executors,  as  soon  as  they  have 
sufficient  funds  in  their  hands,  pay  my  funeral  expenses  as  above 
suggested. 

Third.  I  give  my  son,  C.  C,  all  that  certain  lot,  piece,  or 
parcel  of  land,  situate,  lying  and  being  in  the  city  and  county  of 
San  Francisco,  state  of  California,  bounded  and  described  as 
follows,  to  wit:  [Description.] 

Fourth.  /  give  and  devise  all  the  rest,  residue  and  remainder 
of  any  real  estate,  of  every  name  and  nature  whatsoever',  oivned 
by  me  at  the  time  of  my  death,  to  my  said  wife,  J.  C,  and  my  said 
daughter,  B.  C,  to  be  divided  equally  between  them,  share  and 
share  alike. 

I  hereby  nominate  and  appoint  T.  M.  and  G.  B.,  of  said  city 
and  county  of  San  Francisco,  the  executors  of  this,  my  last  Will 
and  Testament,  and  hereby  revoke  all  former  wills  by  me  made. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal,  this 
ninth  day  of  April,  in  the  year  of  our  Lord  one  thousand  nine 
hundred  and  HveA 

Capacity  of  Testators,  Generally. — ^TJnrler  this  head  all  statutory  refer- 
ences are  to  the  Civil  Code  of  California,  and  the  adjudicated  cases  cited 
relate  to  a  testator's  mental  capacity,  menace,  duress,  fraud,  undue 
influence  destroying  his  free  agency,  and  his  right  to  dispose  of  his 
property  by  will. 

Urmaturalness  and  Unreasonableness. — The  right  to  make  a  will  is 
assured  by  law.  It  does  not  depend  upon  judicious  use,  and  canrfbt  be 
Bet  aside  because  it  does  not  conform  to  a  court  or  jury's  ideas  of  what 
is  just.  If  it  is  thought  to  be  unnatural,  then  it  must  not  be  disturlied 
unless  the  evidence  shows  mental  incapacity,  fraud,  menace,  or  undue 
influence:  Estate  of  Wilson,  117  Cal.  262,  49  Pac.  172,  711. 


WiUv,  Disposition  or  Property  by.  363 

An  uncle  ia  not  obliged  to  provide  for  his  nephews  and  nieces;  and 
if  he  does  not,  it  will  not  be  presumed  that  they  were  forgotten:  Es- 
tate of  Keegan,  139  Cal.  123,  72  Pac.  828. 

Testamentary  Capacity. — A  mind  sufficiently  clear  and  strong  to  be 
able  to  know  and  understand  the  nature  of  the  testamentary  act,  to 
know  and  remember  the  character  and  extent  of  the  property  disposed 
of,  and  the  manner  in  which  and  the  persons  to  whom  it  is  desired  to 
distribute  it:   Estate  of  Wilson,  117  Cal.  202.  49  Pac.   172,  711. 

A  mere  fleeting  vagary  as  to  property  of  another  is  not  an  insane  de- 
lusion: Estate  of  Bedfield,  116  Cal.  637,  48  Pac.  794. 

A  testator  feeble  in  health,  suffering  undor  disease,  aged  and  infirm, 
with  a  mind  capable  of  understanding  the  nature  and  situation  of  his 
property  and  disposing  of  it  intelligently  without  delusion,  has  capacity 
to  make  a  will:  Estate  of  Motz,  136  Cal.'  558,  69  Pac.  294. 

"Wills  do  not  depend  for  their  validity  upon  the  testator's  ability  to 
reason  logically,  or  upon  his  freedom  from  y>rejudice. "  (If  they  did, 
a  select  few  of  us  only  would  possess  testamentary  capacity.)  Estate  of 
Scott,  128  Cal.  57,  60  Pac.  527. 

If  a  will  be  contested  upon  the  ground  of  insane  delusion,  the  con- 
testant must  present  evidence  sufficient  to  overeome  the  presumption  of 
sanity:  Estate  of  Scott,  128  Cal.  57,  60  Pac.  527. 

It  is  soundness  or  unsoundness  of  mind  that  controls  the  judgment.  A 
man  may  be  in  a  state  of  extreme  bodily  or  mental  weakness  or  disease 
and  yet  he  may  possess  sufficient  understanding  to  direct  how  his  proj>- 
erty  may  be  disposed  of:  Estate  of  Nelson,  132  Cal.  182,  64  Pac.  294. 

Intoxication. — If  it  be  established  that  the  testator  frequently  drank 
intoxicating  liquors  to  excess  and  had  been  greatly  intoxicated,  and  was 
not  intoxicated  at  the  time  he  made  his  last  will,  if  no  other  cause  for 
setting  the  will  aside  appears,  it  ought  to  stand:  Estate  of  Wilson,  117 
Cal.  262.  49  Pac.   172,  711. 

Insane  Delusions. — If  insane  delusions  are  not  shown  to  be  operative 
ii^  the  testamentary  act,  and  which  do  not  relate  to  the  persons  or  ob- 
jects affected  by  it,  they  do  not  affect  the  will:  Estate  of  Eedfield,  116 
Cal.  637,  48  Pac.  794. 

A  will  cannot  be  set  aside  unless  it  is  established  that  the  maker  did 
not  at  the  time  when  it  was  made  possess  a  mind  clear  and  strong 
enough  to  be  able  to  understand  the  nature  of  the  testamentary  act: 
Estate   of   Wilson,   117   Cal.   262.  49   Pac.    172.   711. 

Insane  delusions  are  not  merely  temporary  hallucinations  or  unfounded 
dislikes  or  antipathies,  or  false  opinions  or  beliefs.  They  are  firmly  fixed 
beliefs  of  a  diseased  mind,  which  no  argument  or  evidence  can  convince 
to  the  contrary,  and  which  a  rational  mind  would  not  entertain:  Estate 
of  Kendrick,  130  CaJ.  360,  62  Pac.  605. 

Fraud. — It  is  not  fraudulent  to  seek  to  control  a  testator  in  making 
a  will  with  proper  purpose  and  effect;  and  if  false  representations  are 
hov-estly  wade  ^rith  a  belief  Hint  they  are  true,  and  loith  good  motives, 
they  are  not  fraudulent,  nor  will  the  will  in  this  respect  be  eiemted  by 
reason  of  any  fraudulent  representations,  The  language  of  the  conrt 
Ao  startling,  but  when  considered  with  the  fact  that  the  record  on 
appeal  did  not  show  that  such  false  representations  were  made  prior 
to  the  execution  of  the  will,  and  were  not  shown  to  have  been  be- 
lieved and  acted  upon  by  the  testator,  it  is  plain  that  the  fraud  was 
not  established:   See   Estate  of  Benton,  131   Cal.  472,  63  Pac.  775. 

Undue  Influence. — A  wife  may  justly  influence  her  husband  to  make 
a  will  in  her  favor,  for  her  benefit  or  for  the  benefit  of  others,  so  long 
as  she  does  not  act  fraudulently,  or  extort  benefits  from  her  husband 
when  he  is  not  in  a  condition  to  exercise  his  faculties  as  a  free  agent. 
There  must  be  produced  proof  of  pressure,  whieh  overpowered  the  voli- 
tion of  the  testator  at  the  time  the  will  was  made:  Estate  of  Lang- 
ford,    108    Cal.    608,    41    Pac.    701. 


3^4  New  Book  of  Forms. 

There  nrast  be  some  frnud  or  misrepresentation  praetieed  when  the 
will  was  made,  or  moral  coercion  then  employed,  such  as  to  destroy  free 
agency:  Estate  of  Kaufman,  117  Cal.  288,  59  Am.  St.  Rep.  179,  49  Pac 
lii2. 

A  mistress  may  influence  her  lover  to  make  a  will  in  her  favor.  A 
will  made  under  a  mistress'  influence  which  did  not  overcome  the  free 
will  of  the  testator  is  not  void  because  of  "undue  influence":  Estate 
of  RufSno,  116  Cal.  304,  48  Pac.  127.  In  this  case  the  question  of  "un- 
lawful influence"  was  not  raised,  but  was  mentioned  in  the  opinion. 
The  relation  of  lover  and  mistress  is  not  always  lawful,  nor  is  it  always 
unlawful.  It  would  seem  that  if  any  influence  is  exercised  in  respect 
to  those  disinherited  by  reason  of  the  unlawful  connection,  such  influ- 
ence would  be  unlawful  and  the  will  void. 

The  words  "undue  influence"  recognize  the  right  to  exercise  due 
influence  such  as  is  referred  to  in  Estate  of  Longford,  108  Cal.  608,  41 
Pac.  701. 

The  kind  of  undue  influence  that  will  destroy  a  testamentary  writ- 
ing must  be  such  as  will  destroy  the  testator's  free  agency  at  the 
time  of  the  making  of  the  will:  Estate  of  Motz,  136  Cal.  558,  69  Cal.  294. 

A  woman  signed  a  supposed  will  disinheriting  a  sister,  who  was  poor 
and  had  a  large  family,  in  favor  of  a  niece,  who  was  "well  to  do." 
The  testator  was  paralyzed.  In  a  former  will  she  remembered  her 
sister.  The  testator  sent  for  her  niece  to  induce  her  to  be  friendly 
to  the  former  will.  The  will  was  changed  in  favor  of  the  niece.  The 
niece  eame  before  the  will  was  changed  and  spoke  against  the  sister 
during  repeated  and  long  conversations.  Before  the  change  was  made 
the  testatrix,  while  in  an  enfeebled  condition,  put  herself  in  the  hands 
of  her  niece  to  be  controlled  by  her  in  fhe  change  of  the  will.  Held, 
that  the  niece's  influence  was  undue:  Estate  of  Kendrick,  130  Cal.  360, 
62  Pac.  605. 

If  a  person  makes  an  unnatural  will,  a  foolish  will  or  an  unjust  will, 
that  fact  does  not  justify  a  jury  in  attempting  to  substitute  their 
v'ews  of  a  fair  will  for  that  which,  under  the  law,  the  testator  had  a 
right  to  make:  Estate  of  Donovan,  140  Cal.  390,  73  Pac.  1081. 

No.  513. — Will  Making  a  General  Disposition  of  Property, 
Also  an  Annuity,  with  Other  Bequests. 

I,  A.  B.,  of  C,  in  the  county  of  S.,  being  infirm,  and  sensible, 
too,  of  my  liableness  to  sudden  death,  at  the  same  time  being,  as 
I  think,  of  sound  mind,  judge  it  best  to  make,  and  do  hereby 
make,  this  my  last  will  and  testament. 

It  is  my  will  that  my  debts  and  the  charges  of  my  funeral  be 
paid  as  soon  as  conveniently  may  be  after  my  decease,  and  I  leave 
the  charges  of  my  funeral  to  the  direction  of  my  family. 

I  give  and  devise,  of  all  my  estate,  real  and  personal,  in  tlie 
following  manner: 

I  give  to  my  daughter  M.  E.  and  to  her  heirs  and  assigns  fifteen 
hundred  dollars,  which  with  what  I  heretofore  advanced  to  and 
for  her,  viz.,  before  her  intermarriage  with  Mr.  D.  M.,  I  judge 
to  make  at  least  twenty  thousand  dollars.  And  I  discharge  her 
and  all  concerned  and  that  may  be  concerned  with  and  for  her 
and  them,  of  what  I  charged  him  with  in  my  books. 

I  give  to  my  daughter  G.  L.  and  to  her  heirs  and  assigns,  twenty 
thousand  dollars. 


Will,  Disposition  oi-  Property  by.  365 

I  give  to  my  daug/itcr  G.  B.  and  to  her  heirs  and  assigns  tzvcnty 
thousand  dollars,  to  be  paid  to  her  when  she  shall  arrive  at  the 
age  of  tivcnty-onc  years ;  and  if  she  shall  leave  lawful  issue,  then 
I  give  the  same  sum  to  such  issue,  to  be  paid  to  such  issue,  in 
equal  shares,  when  and  as  each  of  them  arrive  at  twenty-one 
years  of  age,  or  at  the  time  of  his  or  her  marriage,  whichever 
shall  first  happen.  And  in  the  meantime  it  is  my  will  that  the 
same  sum  be  kept  at  interest  for  the  benefit  of  the  said  G.  E., 
and  such  issue,  and  I  empower  my  executors,  or  whoever  shall 
have  the  care  of  the  said  twenty  thousand  dollars,  to  apply  as 
much  of  the  interest  and  income  of  the  same  as  they  shall  judge 
best  for  her  and  their  support  and  education. 

I  give  to  Mr.  M.  P.,  on  the  day  and  at  the  time  of  my  decease, 
fi7je  thousand  dollars,  provided  and  on  condition  he  shall  then 
be  employed  or  engaged  in  my  business  in  like  manner  as  he 
now  is.  This  gift  I  so  make  him  in  testimony  of  the  great  re- 
gard I  have  for  him,  and  the  sense  I  have  of  his  great  faithful- 
ness in  my  service.  (It  is  well  to  give  Mr.  M.  F.  notice  of  this 
clause  lest  he  may,  unaware  of  it,  strike  if  his  union  goeth  out.) 

And  it  is  my  will  that  if  my  son  H.  dies  before  he  arrives  at 
the  age  of  txvcnty-onc  years,  then  what  shall  remain  of  Jiis  share  f 
of  my  estate  shall  go  to  his  surviving  brethren  aforenamed,  in  1 
equal  shares.  But  if  either  of  these  brethren  shall  happen  to  die 
without  legal  issue  living,  and  this  while  the  said  H.  shall  be 
living,  then  I,  in  the  case  aforesaid,  give  the  same  to  the  survivor 
of  said  brethren  (namely,  E.  and  D)  and  the  heirs  of  such  sur- 
vivor. 

The  remainder  of  my  estate  I  give  and  grant  to  my  sons  E.,  D., 
and  H.  in  equal  shares,  and  so  to  their  respective  heirs  forever. 
The  share  of  my  son  H.  of  the  same  remainder,  to  be  paid  to  him 
when  he  comes  to  the  age  of  twenty-one  years,  but  until  then  the 
same  share  to  remain  in  the  hands  of  my  executors,  the  personal 
estate  to  be  let  and  placed  at  interest,  and  the  real  estate  im- 
proved or  let  to  the  best  advantage,  for  the  use  of  the  said  H., 
and  so  in  like  manner,  his  share  of  all  surplusage  of  interest  and 
income,  which  I  would  have  added  to  the  capital  stock,  and  let 
at  interest  for  his  benefit,  saving  nevertheless,  that  the  same 
interest  and  income  may  be  used,  paid,  and  applied,  as  I  do  by 
tliis  will  grant,  allow,  order  and  provide.  And  as  my  executors 
must  necessarily  have  much  trouble,  and  employ  a  great  deal  of 
time  in  executing  this  my  will,  I  desire  and  empower  them  to 
employ  Mr.  A.  R.  W.,  attorney  at  law,  San  Francisco,  California 
(and  a  great  trader  and  financier),  or  any  other  person  they  sliall 
think  fit,  in  assisting  them  in  the  settlement  of  my  accounts  and 


2<^(^  New  Book  of  Forms. 

aflfairs,  and  in  tlie  improvement  of  my  trading  stock,  and  that 
they  agree  to  give  and  pay  to  him  and  them  such  sums  of  money 
out  of  my  estate  therefor,  as  he,  the  said  A.  R.,  and  they,  my  said 
executors,  shall  judge  reasonable. 
Signed,  etc. 

No.  514. — Clause  Disposing  of  Real  and  Personal  Estate  to 
Trustees,  with  Power  to   Sell. 

I,  A.  B.,  of  the  city  of  Sacramento,  California,  do  hereby  make 
this  my  last  will  and  testament. 

I  appoint  C,  D.  and  B.,  all  residents  of  said  city,  and  the  sur- 
vivor and  survivors  of  tliem,  executors  of  this  will.  I  dispose  of 
my  estate  as  follows: 

I  give  all  my  lands  and  tenements,  wheresoever  situated,  unto 
the  said  C,  D.  and  E.,  and  the  heirs  of  the  survivor  of  them,  to 
have  and  to  hold  the  same  to  the  uses  following,  to  wit,  to  the 
use  of  them,  the  said  C,  D.  and  E.  and  the  survivor  of  thein,  and 
his  heirs,  during  the  life  of  F.  G.,  husband  of  my  daughter  H.  B., 
and  after  his  decease,  if  my  said  daughter  survives  him,  to  her 
use  and  the  use  of  her  heirs  and  assigns  forever;  but  if  my  said 
daughter  does  not  survave  him,  then,  after  his  decease,  to  the 
use  of  the  children  of  my  said  daughter,  and  their  respective 
heirs  forever,  as  tenants  in  common,  and  the  legal  representa- 
tives of  any  child  of  my  said  daughter,  who  may  have  deceased, 
to  be  entitled  to  the  same  share  jis  his  or  her  parent  would  have 
been,  if  living. 

And  the  lands  and  tenements  which  I  have  devised  unto  the 
said  C,  D.  and  E.,  and  the  survivor  of  them,  for  and  during  the 
life  of  the  said  F.  G.,  is  upon  the  especial  trusts  following,  to  wit, 
that  they  the  said  €.,  D.  and  E.,  and  the  survivor  of  them,  shall, 
during  the  continuance  of  the  said  estate,  receive  the  rents  and 
profits  accruing  from  the  lands  and  tenements  aforesaid,  and 
therewith  make  all  necessary  repairs,  and  pay  all  taxes  and  other 
necessary  charges  and  expenses  in  and  about  the  same ;  and  after 
all  such  "payments  deducted,  shall  at  such  times  and  places  an- 
nually, and  in  such  proportions  as  they  (or  the  survivors)  or  the 
survivor  of  them,  or  the  heirs  of  the  survivor  of  them  may  deem 
expedient,  pay  over  the  residue  of  such  rents  and  profits  to  my 
said  daughter  during  her  life,  to  her  sole  and  separate  use  and 
benefit;  and  after  her  decease,  in  the  same  manner,  shall  appro- 
priate and  expend  the  same  in  the  maintenance  and  education  of 
her  children,  or  any  or  either  of  them,  as  they,  the  said  C.  D.  and 
E.,  or  the  survivors  or  sur\nvor  of  them  may  deem  expedient. 

No.  515. — Clause — Power  to  SelL 
And  I  do  hereby  auUiorize  and  empower  the  said  C.,  D.  and  E. 


WiivL,  Disposition  of  Property  by.  367 

and  the  survivors  and  survivor  of  them,  during  the  hfe  of  the 
said  F.  G.  if  they  shall  judge  expedient  either  in  the  hfetime  of 
my  said  daughter,  for  her  support  and  maintenance,  or  after  her 
decease  in  the  Hfetime  of  the  said  F.  G.  for  the  maintengnce  and 
education  of  her  children,  or  any  or  either  of  them,  to  sell  and 
convey,  for  such  prices  as  they  deem  proper,  all  or  any  part 
of  my  lands  and  tenements  aforesaid,  and  the  whole  proceeds  of 
such  sale  or  sales,  or  any  part  thereof,  or  the  interest  and  income 
thereof,  from  time  to  time,  and  at  such  times  and  places,  in  such 
proportions  as  they  may  judge  expedient,  to  appropriate  to  all  or 
any  of  the  purposes  aforesaid ;  and  after  the  decease  of  the  said 
G.,  to  pay  the  whole  proceeds  of  such  sales  then  remaining  unto 
my  said  daughter,  if  living,  for  her  own  use  forever;  otherwise, 
to  distribute  the  same  among  her  children,  to  their  respective  uses 
forever,  as  tenants  in  common;  and  the  leg^l  representatives  of 
any  child,  who  may  have  deceased,  to  be  entitled  to  the  same 
share  as  his  or  her  parent  would  have  been,  if  then  living. 

No.  516. — Residue  of  Personal  Estate  to  be  Invested  in  Stock. 

And  I  do  further  authorize,  empower,  and  direct  the  said  C,  D. 
and  E.,  and  the  survivors  and  survivor  of  tliem,  after  payment  of 
my  just  debts  and  incidental  charges  by  course  of  administration, 
to  retain  and  keep  in  their  own  hands,  during  the  life  of  the  said 
F.  G.,  all  my  personal  estate  then  remaining,  and  the  same  to  in- 
vest in  blank  or  other  stock,  or  put  out  at  interest  on  good  secur- 
ity, and  the  interest  and  income  thereof,  annually,  at  such  times 
ctnd  places,  and  in  such  proportions  as  tJiey  shall  judge  expedient, 
to  pay  to  my  said  daughter  during  her  life,  for  her  sole  and  sep- 
arate use.  And  if  my  said  daughter  shall  survive  the  said  F.  G., 
then,  on  his  decease,  to  pay  the  whole  of  said  personal  estate  to 
her,  to  her  own  use  forever ;  but  if  she  shall  not  survive  the  said 
F.  G.,  then  during  his  life,  after  her  decease,  to  appropriate  the 
same  interest  and  income  thereof  to  the  maintenance  and  educa- 
tion of  her  children,  or  any  or  either  of  them,  as  they  shall  judge 
expedient,  and  after  the  death  of  the  said  F.  G.,  to  distribute  the 
whole  of  said  personal  estate  among  said  children,  to  their  re- 
spective use  forever ;  and  legal  representatives  of  any  child,  who 
may  have  died,  to  be  entitled  to  the  same  share  as  his  or  her 
parent  would  have  been,  if  then  living.  And  I  do  further  au- 
thorize the  said  €.,  D.  and  E.,  and  the  survivor  of  them,  during 
the  life  of  said  F.  G.,  in  case  that  they  shall  judge  expedient,  to 
appropriate  tlie  whole,  or  any  part  of  the  principal  of  my  said 
personal  estate  either  to  the  support  and  maintenance  of  my  said 
daughter  during  her  life,  or  after  her  death,  to  the  education  and 
maintenance  of  all  or  any  of  her  cliildreru 

Signed,  etc. 


368  New  Book  of  For.ms. 

No.  517. — Devise  to  Daughter  for  Life,  Remainder  to  Trus- 
tees* to  Support  Contingent  Remainders,  etc. 
And  as  to,  for,  and  concerning  my  said  house,  at  A'',  aforesaid, 
and  the  said  pasture  and  all  coach-houses,  barns,  stables,  edifices, 
buildings,  courts,  yards,  orchards,  gardens,  and  pleasure  grounds, 
to  the  said  capital  house  belonging  or  appertaining,  and  now  in 
my  own  occupation,  from  and  immediately  after  the  decease  of 
my  said  wife  and  son,  and  also  as  to,  for  and  concerning  all  the 
said  tenements,  etc.,  hereinbefore  given  or  limited  in  use  to  the 
said  A.  and  B.,  their  executors,  etc.,  for  the  said  term  of  trventy 
years,  upon  the  trusts  aforesaid,  from  and  immediately  after  the 
end,  expiration,  or  other  sooner  determination  of  the  said  term  of 
twenty  years,  and,  in  the  meantime,  subject  thereto  and  to  the 
trusts  thereof,  to  the  use  of  my  daughter  H.  M.  H.,  wife  of  the 
said  M.  H.,  the  elder,  for  and  during  her  life ;  and  from  and  after 
the  end,  expiration,  or  other  sooner  determination  in  that  estate 
by  forfeiture  or  otherwise  in  her  lifetime,  to  the  use  of  the  said 
C.  P.  and  P.  W.,  and  their  heirs,  during  the  life  of  my  said 
daughter,  in  trust  to  support  and  preserve  the  contingent  uses 
and  estates,  hereinafter  given  or  limited  from  being  defeated  or 
destroyed,  and  for  that  purpose  to  make  entries,  and  bring  ac- 
tions, as  occasion  shall  be  or  require,  but  nevertheless  to  suffer 
my  said  daughter  or  her  assigns,  to  receive  and  take  the  rents 
and  profits  of  the  said  lands,  etc,  for  her  own  use,  during  her 
life;  and  from  and  immediately  after  the  decease  of  my  said 
daughter,  then  also  as  to,  for,  and  concerning  the  said  lands,  etc., 
with  their  respective  appurtenances,  to  the  use  of  my  grandson,. 
M.  H.,  the  younger,  and  his  assigns,  for  and  during  his  life,  and 
from  and  after  the  determination  of  that  estate,  by  forfeiture 
or  otherwise,  in  his  lifetime,  then  to  the  use  of  the  said  C.  P.  and 
P.  W.  and  their  heirs,  during  the  life  of  my  said  grandson,  M.  H., 
the  younger,  in  trust  to  support  and  preserve  the  contingent  uses 
and  estates  hereinafter  given  or  limited  from  being  defeated  or 
destroyed. 

No.  518. — A  Proviso  Binding  the  Testator's  Decedants  to 
Take  His  Surname. 
Provided  always,  and  my  will  nevertheless  is,  that,  if  the  per- 
sons to  whose  use  the  said  lands  and  tenements  are  hereinbefore 
devised  or  limited,  in  remainder  from  and  after  the  decease  of 
my  said  daughter,  H.  M.  H.,  do  not,  and  shall  not,  as  and  when 
they  shall  severally,  by  virtue  of  the  devises  and  Umitations  here- 


*This  clause  and  all  others  referring  to  trusts,  etc.,  which  are  not 
permissible  under  the  laws  of  California  are  clearly  applicable  in  other 
states  an<i  territories. 


Wii.1.,  Disposition  of  Property  by.  369 

inbefore  contained,  become  and  be  entitled  in  possession  to  the 
said  premises,  respectively,  or  to  receive  and  take  the  profits 
thereof,  use,  assume  and  take  upon  themselves  respectively  the 
surname  of  S.,  and  by  the  said  surname  of  S.  only,  and  rK)  other, 
from  thenceforth  forever,  thereafter  continue  to  name,  style  and 
write  themselves,  in  all  deeds,  instruments  and  writings,  5*.  only, 
or  shall  refuse,  decline,  or  neglect  so  to  do,  for  the  space  of  six 
months  after  they  shall  severally  become  and  be  so  entitled  as 
aforesaid,  and  be  of  the  age  of  twenty-one  years  or  upward  :  Then, 
and  as  often  as  the  case  shall  so  happen,  the  estate  and  interest  of 
him,  her,  or  them  so  refusing,  declining,  or  neglecting  as  afore- 
said, of  and  in  all  the  said  premises  hereinbefore  given  and  de- 
vised, shall  from  thenceforth  cease,  determine  and  be  void,  in 
such  and  the  same  manner  to  all  intents  and  purposes  whatsoever 
as  if  he,  she  or  they  so  refusing,  declining  or  neglecting  as  afore- 
said was  or  were  actually  dead  without  issue,  an)thing  herein- 
before contained  to  the  contrary  thereof  notwithstanding. 

The  surname  aforesaid  to  be  always  spelled  with  the  same  let- 
ters in  the  same  sequence  as  in  this  instrument  used;  and  the 
omission  or  displacement  of  any  letter  or  letters,  or  the  addition 
of  any  word  or  letter  so  as  to  change  the  sound,  accent  or  mean- 
ing of  said  surname  shall  work  a  forfeiture  as  is  hereinabove 
provided. 

No.  519. — Clause — Money  Given  upon  Trusts. 

I  give  ten  tlwusand  dollars  to  the  said  C.  P.  and  P.  W.,  their, 
etc.,  upon  and  for  the  trusts,  intents  and  purposes,  and  with  and 
subject  to  the  powers  and  provisos  hereinafter  mentioned  and  ex- 
pressed of  or  concerning  the  same,  that  is  to  say,  upon  trust,  that 
they,  the  said  C.  P.  and  P.  W.,  and  the  survivor  of  them,  etc., 
shall  pay  the  interest  of  the  said  sum  of  ten  thousand  dollars  to 
my  said  daughter,  H.  M.  H.,  or  otherwise  authorize  and  empower 
her  to  receive  and  take  the  same  for  her  own  use,  during  her 
life,  and  shall,  after  her  decease,  stand  and  be  possessed  of  the 
said  sum  of  ten  thousand  dollars,  in  trust  for  all  and  every  the 
child  and  children  of  my  said  daughter,  H.  M.  H.,  lawfully  be- 
gotten or  to  be  begotten,  and  to  go  or  be  paid,  and  assigned  and 
transferred  to  such  child  or  children,  at  such  time  or  times,  and 
if  more  than  one,  in  such  parts,  shares  and  proportions,  and  with, 
under,  and  subject  to  such  conditions  and  limitations  over,  or  my 
said  daughter  shall,  by  deed  or  writing,  or  by  her  last  will  direct. 
No,  520. — Clause — Provision  for  the  Indemnity  of  Trustees, 

etc. 

And  I  do  hereby  declare  ni)  will  to  be,  that  it  shall  be  lawful 
New  Forms — 2i 


3/0  Nh;w  Book  of  Forms. 

to  and  for  my  said  trustees  and  executors,  and  their  respective 
heirs,  executors,  and  administrators  (or  if  such  cannot  be,  by 
those  appointed  by  law  in  their  stead),  by  and  out  of  all  or  any  of 
the  moneys,  which,  by  virtue  of  this  my  will,  or  any  trust  therein 
declared,  shall  come  to  their,  or  any  of  their,  hands,  to  deduct, 
retain  to  and  reimburse  themselves  all  such  reasonable  costs, 
charges  and  expenses  as  they  respectively  sustain,  expend,  or  be 
put  unto,  in  or  about  the  execution  of  this  will,  and  also  that  my 
said  trustees  and  executors,  their  respective  heirs,  executors  and 
administrators  (with  the  limitation  aforesaid)  shall  be  charged 
and  chargeable  only,  every  of  them,  for  and  with  his  own  re- 
spective receipts,  payments,  acts  and  willfid  dcfaidts,  and  not 
otherwise,  and  shall  not  be  charged  or  chargeable  with  or  for 
any  sum  or  sums  of  money,  other  than  such  as  shall  actually  and 
respectively  come  to  his,  her  and  their  hands  by  virtue  of  this  my 
will,  nor  with  or  for  any  loss  or  damages  which  may  happen,  in 
or  about  the  execution  of  all  or  any  of  the  trusts  hereby  in  them 
reposed,  without  his,  her  or  their  respective  ivillftd  default. 

No.  521. — A  Clause  that,  in  Case  a  Legatee  Shall  Sue  or  Molest 
Any  Other  Legatee,  in  the  Enjoyment  of  His  Legacy, 
etc.,  Such  Gift  to  Such  Person,  etc.,  to  be  Void. 
Aud  further,  in  case  any  person  or  persons  to  whom  any  legacy 
or  benefit  out  of,  from  or  by  reason  of  this  my  will,  shall  come, 
shall  commence  any  suit  in  any  court  whatsoever,  or  by  any  ways 
or  means,  sue  and  disturb,  or  cause  to  be  sued  and  disturbed,  my 
executors  or  trustees  herein  named,  or  any  other  person  or  per- 
sons whatsoever,  to  whom  anything  is  by  me  given  in  this  my 
will,  from  the  recovering,  quiet  enjoying  and  possessing,  of  what 
is  by  me  herein  given  as  aforesaid,  and  in  such  manner  as  is 
therein  mentioned,  then  my  will  and  meaning  is,  that  all  and 
every  the  legacy  and  legacies,  herein  by  me  given  to  any  such 
person  or  persons  whatsoever,  who  shall  so  sue  and  disturb  as 
aforesaid,  shall  cease,  determine  and  be  utterly  void.  And  that 
then  and  from  thenceforth,  I  do  give  and  bequeath  all  and  every 
the  legacies,  which  I  had  in  this  my  will  given  to  such  person  or 
persons,  or  in  trust  for  such  person  or  persons,  unto  my  said 
grandson,  A.  B.,  his  executors  and  administrators. 

No.  522. — A  Proviso  for  Appointing  New  Trustees. 

Provided  likewise,  and  I  direct,  that  in  case  any  or  either  of 
them  the  said  trustees  or  trustee,  or  any  future  trustee  or  trustees, 
shall  die,  or  be  desirous  to  be  discharged  from,  or  neglect  or  re- 
fuse to  act  in,  the  trusts  hereby  created,  at  any  time  or  times 
before  the  same  trusts  shall  be  finally  performed  or  otherwise 
determined,  then  it  shall  and  may  be  lawful  to  and  for  the  sur- 
vivor or  survivors  of  them,  by  any  writing  or  vv'ritings,  under  his 


Will,  Disposition  op  Property  by.  371 

or  their  hands,  and  be  attested  by  ti\.'o  or  more  credible  witnesses, 
from  time  to  time,  to  nominate  or  appoint  any  other  person  or 
persons  to  be  trustee  or  trustees,  in  the  stead  or  place  of  the 
trustee  or  trustees  so  dying  or  desiring-  to  be  discharo^ed,  or  re- 
fusinq'  or  declinmo;,  or  becoming  incapable  to  act  as  aforesaid, 
and  that  when,  and  so  often  as,  any  such  new  trustee  or  trustees 
shall  be  nominated  and  appointed  as  aforesaid,  all  the  trust  es- 
tates, moneys  and  premises,  which  shall  then  be  vested  in  the 
trustee  or  trustees  so  dying,  or  desiring  to  be  discharged,  or  re- 
fusing or  declining,  or  becoming  incapabel  to  act  as  aforesaid, 
either  solely  or  jointly  with  the  other  trustee  or  trustees,  shall 
be  thereupon,  with  all  convenient  speed,  conveyed,  assigned  and 
transferred  in  such  manner,  and  so  as  that  the  same  shall  and 
may  be  legally  and  effectually,  vested  in  the  surviving  or  con- 
tinuing trustee  or  trustees,  or  if  there  shall  be  no  continuing  or 
surviving  trustee  or  trustees,  then  in  such  new  trustees,  and  upon 
the  said  trusts  as  are  hereinbefore  declared  of  and  concerning 
the  same  trust  estates,  moneys  and  premises  respectively,  or  such 
of  them  as  shall  and  may  be  subsisting  and  capable  of  taking 
effect ;  and  that  any  such  new  trustee  or  trustees  shall,  in  all 
things,  act  and  assist  in  the  management,  carrying  on  and  exe- 
cution of  the  trusts,  to  which  they  shall  be  so  appointed  in  con- 
junction with  the  other  surviving  or  continuing  trustee  or  trus- 
tees ;  and  if  there  shall  not  then  be  any  such  sunnving  trustee  or 
trustees,  then  by  themselves,  as  fully  and  effectually,  and  with 
all  the  same  power  and  powers,  authority  and  authorities,  of  con- 
sent, approbation,  discretion,  calling  in,  laying  out  and  investing, 
compounding,  compromising,  giving  and  signing  efl'ectual  indem- 
nifications and  discharges  to  purchasers,  mortgagees,  or  others, 
and  all  other  powers  and  authorities  whatsoever,  to  all  intents 
and  purposes  whatsoever,  as  if  he  or  they  had  been  originally,  in 
and  by  this  my  will  appointed  trustee  or  trustees,  for  the  pur- 
poses for  which  such  trustee  or  trustees,  in  or  to  whose  place  such 
new  trustee  or  trustees  shall  respectively  come  or  succeed,  are 
and  is  enabled  to  do,  or  could  or  might  have  done,  under  and 
by  virtue  of  this  my  will,  if  then  living,  or  continuing  to  act  in 
the  trusts  hereby  reposed  in  them ;  and  I  particularly  recommend 
and  request  that  such  substitution  or  nomination  of  a  new  trustee 
may  be  made  on  the  death  or  resignation  of  any  of  the  said 
trustees,  or  within  twelve  months  after  such  event  shall  take 
place. 

No.  523. — Another  Form,  etc. 
Provided,  always,  that  in  case  of  the  death  of  either  of  the 
said  trustees,  my  will  is,  that  the  survivor  of  them  do,  imme- 
diately after  the  death  of  either  of  them,  the  said  trustees,  by 


372  Kew  Book  of  Forms. 

any  writing  under  his  hand  and  seal,  to  be  attested  by  two  or  more 
credible  witnesses,  appoint  some  oLher  lit  person  or  persons  to 
be  trustee  or  trustees  in  the  place  and  stead  of  the  trustee  so 
dying,  which  new  trustee  or  trustee  so  to  be  appointed  shall  have 
the  same  power  toucliing  the  trust  premises  and  in  the  execution 
of  the  trusts  herein  contained  as  they,  the  said  C.  D.  and  B.  F., 
or  eitlier  of  them,  would  have  had  by  virtue  of  this  my  will,  or 
otherwise,  in  case  they  had  been  living.  And  lastly,  I  do  hereby 
constitute  the  said  C.  D.  and  £.  F.,  trustees  and  executors  of  this 
my  last  will  and  testament,  and  do  give  and  bequeath  to  each  of 
them  the  stmi  of  five  thousand  dollars,  upon  condition  that  they 
respectively  take  upon  them  the  execution  of  the  trusts  hereby 
in  them  reposed,  etc. 

No.  524. — A  Clause  in  a  Will  Concerning  Disputes. 

And  lastly,  my  express  will  and  meaning  is,  and  I  do  hereby 
order,  that  if  any  difference,  dispute,  question  or  controversy 
shall  be  moved,  arise  or  happen,  concerning  any  gift,  bequest  or 
other  matter  or  thing  in  this  ray  will  given  and  bequeathed,  ex- 
pressed or  contained,  that  then  no  suit  or  suits  in  law  or  equity, 
or  otherwise  shall  be  brought,  commenced,  or  prosecuted  for 
and  concerning  the  same,  but  the  same  shall  be  referred  wholly 
to  the  award,  order,  and  determination  of  a  board  of  arbitrators, 
its  judgment  to  be  entered  as  an  order  of  court,  and  what  they 
shall  order,  direct  or  determine  therein  shall  be  binding  and  con- 
clusive to  all  and  every  person  and  persons  therein  concerned. 
No.  525. — A  Clause  Whereby  Testator  Forgives  All  Debts  Due 
from  Relations  Therein  Named. 

And  whereas,  there  are  considerable  sums  of  money  due  and 
owing  to  me  upon  bonds,  bills,  and  otherwise,  from  my  relations 
hereinbefore  named,  it  is  my  will,  and  I  do  hereby  direct,  that 
the  same  bonds,  bills,  etc.,  immediately  after  my  death,  shall  be 
canceled  and  destroyed  by  my  said  executors.  And  I  do  hereby 
discharge  my  aforenamed  relations,  and  every  of  them,  their  and 
every  of  their  heirs,  executors  and  administrators,  from  the  pay- 
ment of  every  debt  and  debts  due  and  owing  to  me,  or  my  estate, 
upon  any  account  whatsoever,  without  any  abatement  or  deduc- 
tion from  or  out  of  their  legacies,  before  by  me  given  or  devised 
to  them  respectively,  in  and  by  this  my  last  will  and  testament. 

I  have  done  my  best  to  collect  all  such  evidences  of  indebted- 
ness and  I  add  this  clause  to  save  my  estate  useless  expense. 

A.  B.,  Testator. 

No.  526. — A  Clause  Whereby  Testator  Remits  a  Debt  of  Ten 
Thousand  Dollars  Due  from  His  Brother,  in  Case  He  does 
not  Molest  the  Execution  of  His  WilL 
And  whereas,  my  brother  IV.  D.  stands  justly  and  duly  in- 


Wiix,  DisrosiTiON  OF  Property  by.  373 

debted  to  me  in  several  sums  of  money,  which  I  have,  for  several 
years  now  last  past,  paid,  lent  and  advanced  to  and  for  him  and 
his  use,  amounting  in  the  whole  to  the  sum  of  $10,000  and  up- 
wards ;  my  will  therefore  is,  that  in  case  he  gives  no  trouble  or 
molestation  to  my  executors  in  the  execution  and  performance  of 
this  my  last  will  and  testament,  I  do  hereafter  remit  and  release 
unto  him  the  said  debt  of  $10,000,  and  he  shall  not  be  answerable 
to  my  executors  for  the  same.  But  in  case  he  gives  trouble, 
molestation  or  disturbance  to  them,  or  either  of  them,  for  or  on 
account  of  anything  in  this  my  will  contained,  then  I  give  the  said 
$10,000  to  my  executors,  upon  the  trusts,  intents  and  purposes  in 
this  my  last  will  mentioned,  and  in  aid  of  the  full  execution  and 
performance  of  the  same.* 

No.  527. — A  Proviso  Touching  Nieces'    Marriages    Without 

Consent. 
Provided  always,  and  my  will  and  meaning  is,  that  if  any  or 
either  of  my  said  nieces,  at  any  time  hereafter  during  the  life- 
time of  their  father  and  mother  and  the  said  B.  (the  trustee),  or 
the  survivors  or  survivor  of  them,  do  and  shall  marry,  without 
the  approbation  and  consent  of  their  said  father  and  mother  and 
the  said  B.  or  of  two  of  the  survivors  of  them,  in  ivriting  under 
his  or  their  hand  or  hands,  first  had  and  obtained,  then  and  in 
such  case,  all  and  every  the  devises,  bequests  and  legacies,  and 
every  of  them,  shall  cease,  determine,  and  become  absolutely  void, 
frustrated  and  of  none  effect  in  law  or  equity,  to  all  intents  and 
purposes  whatsoever;  and  then  and  from  thenceforth,  and  after 
such  marriage  and  marriages  without  such  approbation  as  afore- 
said, I  do  give,  devise  and  bequeath  all  and  singular  the  land, 
money  and  all  other  the  benefit  and  advantages  of  all  and  every 
the  matters  and  things  hereinbefore  given,  devised,  or  bequeathed, 
or  which  by  virtue  of  this  my  will  might  have  been  had,  claimed, 
or  demanded,  by  such  of  my  said  nieces  as  without  such  appro- 
bation and  consent  as  aforesaid,  in  case  she  had  married,  etc., 
with  such  approbation,  etc.,  to  such  of  my  said  nieces,  their  heirs, 
etc.,  as  shall  not  then  be  married,  or  if  married,  to  her  or  them 
who  hath  or  have  taken  and  married  by  and  with  such  approba- 
tion and  consent  as  aforesaid  :  it  being  my  will  and  meaning,  tliat 
such  of  my  said  nieces  who  shall  so  marry  without  such  approba- 
tion and  consent  as  aforesaid,  first  had  and  obtained,  shall  not 
have,  take  and  enjoy  any  profit,  benefit  or  advantage  whatsoever, 
by  or  by  virtue  of  this  my  will,  but  shall  forfeit  to  her  said  sisters, 
and  her  or  their,  etc.,  all  and  .every  the  said,  etc.,  benefits,  etc, 
in  and  by  this  my  last  will  devised,  given  or  bequeathed,  or  which, 

*Query:    Under    the    inheritance    tax    law    of    California    would    "W. 
D. "  be  liable  for  a  tax  on  said  bequest  T 


374  New  Book  of  Forms. 

by  virtue  or  color  of  this  my  will,  might  have  been  had,  taken, 
claimed  or  demanded,  by  such  of  them  as  shall  so  marry  without 
sudi  consent  as  aforesaid,  in  case  she  had  married  with  such 
approbation,  etc. 

No.  528. — A  Proviso  that  if  a  Daughter  Marry  Without  Con- 
sent, Her  Portion  not  to  be  Paid  Her,  but  Only  the  Inter- 
est, and  the  Principal  to  be  Divided  Equally  Amongst  Her 
Children. 
Provided  also,  and  my  further  will  is,  that  in  case  both  or 
either  of  my  said  daughters  shall,  before  their  respective  ages  of 
twenty-one  years,  intermarry  with  any,  against  or  without  the 
consent  of  my  said  wife,  if  then  living,  but  if  dead,  without  the 
consent  or  approbation  of  my  said  executors,  or  the  survivor  of 
them  (such  consent  as  aforesaid  to  be  testified  by  writing  under 
the  respective  hands  of  my  said  wife,  or  of  my  said  executors), 
then  and  in  such  case,  the  interest  only,  after  the  rate  of  ten 
per  cent  on  the  portion  or  portions  of  such  daughter  or  daughters 
so  marrying  without  such  consent  as  aforesaid,  shall  be  paid  to 
her  or  them  during  her  or  their  respective  life  or  lives,  for  her 
or  their  sole  and  separate  use  and  benefit,  exclusive  of  any  hus- 
band ;  and  that  upon  the  death  of  such  daughter  or  daughters, 
marrying  without  such  consent  as  aforesaid,  the  portion  or  por- 
tions, so  given  or  intended  for  such  daughter  or  daughters,  shall 
be  paid  to  and  for  the  use  and  benefit  of  all  and  every  the  child 
or  children  of  such  daughter  so  marrying  without  such  consent 
as  aforesaid ;  the  same  to  be  divided  equally  to  and  amongst  them, 
share  and  share  alike  (if  more  than  one),  and  to  be  paid  to  such 
child  or  children,  at  his,  her,  or  their  respective  age  or  ages  of 
twenty-one  years,  or  day  or  days  of  marriage  which  shall  first 
happen,  together  with  interest  for  the  same  after  the  rate  afore- 
said, from  the  time  of  their  respective  mothers'  death,  until  the 
same  become  payable  and  be  paid,  anything,  etc. 

No.  529. — A  Bequest  of  One  Dollar  to  an  Imprudent  Son, 

Whereas  my  eldest  son,  W.  H.,  hath  highly  offended  and  dis- 
obeyed me,  I  therefore  give  and  bequeath  unto  my  said  son  JV.  H. 
one  dollar  and  no  more. 

No.  530. — A  Devise  or  Gift  to  Stanford  University,  San  Ma- 
teo County,   California,  for  the  Education  of  One   Poor 
Scholar  Forever. 
Item:  I  give,  etc.,  unto  the  said  S.  University  and  to  its  heirs 
and  assigns  forever,  all  that  block  of  land  in  the  city  and  county 
of  San  Francisco,  state  of    California,  bounded    by  California, 


Will,  Disposition  of  Property  by.  375 

Mason  and  Sacramento  streets.  Upon  this  special  trust  and  con- 
fidence nevertheless,  that  it  shall,  from  time  to  time,  and  at  all 
times  hereafter,  permit  and  suflfer  the  directors  and  fellows  of 
S.  University  for  the  time  being,  and  their  successors  forever,  to 
receive  and  take  the  rents,  issues,  and  profits  thereof,  which  I 
direct  and  appoint,  shall  from  time  to  time,  and  at  all  times  here- 
after, be  paid  and  allowed  for  and  toward  the  maintenance  and 
education  of  a  poor  scholar  of  the  said  college,  for  and  during 
and  until  such  scholar  shall  be  bachelor  of  arts;  and  then  to 
another  poor  scholar  to  be  elected  and  chosen,  which  scholar 
shall,  from  time  to  time,  be  nominated,  elected,  and  chosen  by  the 
directors  and  president  of  the  said  college. 

The  word  "poor  scholar"  shall  not  be  construed  to  mean  a 
stupid,  etc.,  scholar,  but  an  indigent  one. 

No.  531. — A  Devise  to  an  Executor  in  Consideration  of  Friend- 
ship, etc. 

Item :  In  consideration  of  the  love  and  friendship  which  I  have 
and  bear  for  and  toward  him,  the  said  /.  C.  R.,  and  also  in  con- 
sideration of  the  many  faithful  services  he  has  for  many  years 
last  past  done  and  performed  for  me  in  and  about  my  affairs, 
and  likewise  in  recompense  for  the  great  care  and  pains  he  may 
be  at  and  put  unto,  in  the  faithful  execution  of  this  my  last  will 
and  testament,  I  give  and  devise  unto  him,  the  said  /.  C.  R.,  all 
the  rest,  residue,  and  remainder  of  my  real  and  personal  estates 
whatsoever,  goods  and  chattels,  lands,  tenements  and  heredita- 
ments, both  in  possession  and  in  reversion,  that  I  shall  be  pos- 
sessed of,  or  any  way  entitled  unto,  at  the  time  of  my  decease 
(after  all  my  debts  and  legacies  are  first  paid  and  satisfied  there- 
out, as  aforesaid),  to  hold  and  enjoy  the  same  to  his  own  proper 
use  and  behoof,  and  to  his  heirs  and  assigns  forever.* 

No.   532. — A   Direction  for   Surviving  Trustee   to   Assign   to 

New  Trustees,  to  Prevent  the  Trust  from  Going  to  an 

Executor  or  Administrator. 

And  I  do  hereby  further  order,  that  when  and  so  often  as  either 

of  my  said  trustees  shall  die,  that  then  the  survivors  of  them  shall 

forthwith  assign,  or  cause  to  be  assigned  my  said  houses,  eta, 

and  all  his  estate,  term  and  interest  therein,  to  one  or  more  new 

trustee  or  trustees,  to  be  nominated  by  the  person  or  persons,  who 

for  the  time  being  shall  be  entitled  to  the  rents  and  profits  thereof 

by  virtue  of  this  my  will,  in  such  manner  as  that  the  legal  interest 


•I  have  been  cartful  not  to  leave  any  part  of  my  estate  undisposed 
oi,  but  this  clause  is  iuserted  fearing  that  the  foryjetfulness  of  old  age 
and  bodily   infirmities   may   have   plagued   mj^   memory.  S.   D. 


37^  Nb;w  Book  of  Forms. 

thereof  may  be  revested  in  such  survivor  and  the  person  or 
persons  who  shall  be  so  nominated  for  that  purpose  as  aforesaid, 
upon  the  trusts  aforesaid,  and  so  from  time  to  time,  and  as  often 
as  the  present  or  any  succeeding  trustees  shall  be  reduced  by 
death  to  one ;  to  the  end  that  the  same  trust  may  not  go  to  an 
executor  or  administrator. 

No.  533. — A  Devise  to  Grandchildren,  Their  Parents  to  be 
Trustees  of  the  Estate,  with  Special  Proviso. 

I  give  unto  my  grandchildren,  A.  B.,  C.  D.,  the  children  of  my 
daughter  S.,  and  such  other  child  or  children  of  my  said  daughter 
as  may  be  born  in  wedlock,  all  my,  etc.,  together  with  all  my 
land,  etc.,  and  all  the  buildings  thereon,  etc.,  to  hold  the  same  to 
them  my  aforementioned  grandchildren,  the  children  of  my  afore- 
said daughter  S.,  and  their  heirs  and  assigns  forever,  as  tenants 
in  common  and  not  as  joint  tenants ;  and  I  appoint  my  son  P.  P. 
and  his  said  wife,  and  the  survivor  of  them,  to  be  my  trustees  of 
the  said  estate,  hereby  empowering  them  and  the  survivor  of  them, 
immediately  after  my  decease,  to  enter  upon  and  manage  the 
same  to  the  best  advantage  of  their  said  children,  during  the  life 
of  my  said  son  and  daughter,  or  the  survivor  of  them. 

And  in  order  to  preserve  that  dependence  which  children  ever 
ought  to  have  upon  their  parents,  I  do  further  order,  that  my 
said  son  and  daughter,  or  the  survivor  of  them,  shall  not  be  com- 
pelled to  account  to  their  said  children  for  the  profits  of  said 
estate,  during  the  lives  of  my  said  son  and  daughter;  but  said 
trustees  shall  account  to  their  children,  or  to  such  guardian  as 
shall  be  appointed  to  them,  at  such  time  as  they  the  said  trustees 
shall  think  proper.  And  if  either  of  their  said  children  shall 
dispute  the  account  so  by  their  said  parents  made,  then  I  give 
and  devise  such  part  of  said  child's  estate  to  my  said  daughter 
and  her  heirs  forever,  together  with  all  the  rents,  issues,  and 
profits  that  may  have  been  made  therefrom. 

No.  534. — ^A  Direction  to  Trustees  to  Pay  an  Annuity. 
I  also  give  to  the  said  B.  six  hundred  dollars  a  year,  to  be  paid 
him  yearly  during  his  life;  which  payments  I  order  to  be  thus 
made,  viz.,  that  the  trustees  to  the  estate  hereby  devised  to  the 
children  of  my  son  Q.,  or  whosoever  shall  have  a  right  to  improve 
or  possess  the  same,  by  force  of  this  my  last  will  and  testament, 
shall  pay  yearly  to  said  B.,  on  the  first  day  of  January  annually, 
ttvo  hundred  dollars ;  on  the  first  day  of  September  annuallv,  tivo 
hundred  dollars;  and  on  the  first  day  of  May  annually,  two  hun- 
dred dollars;  and  I  hereby  order  that  my  executor  do  not  pay 
any  part  of  the  said  annuity,  but  that  the  same  be  paid  as  afore- 
said. 


WiLi.,  Disposition  of  Propeuty  by.  377 


No.  535. — A  Clause  that  if  Testator's  Wife  Should  Claim  Her 
Settled  Jointure,  then  She  is  to  Take  No  Benefit  Under 
the  WiU. 

And  I  declare  my  will  to  be,  that,  if  my  said  wife  E.  C.  shall 
insist  upon  receiving  her  jointure  of  $1,200  per  annum,  which 
was  settled  upon  her  by  our  marriage  settlement,  bearing  date 
June  J,  ^90^,  and  secured  by  way  of  rent  charge  upon  some  of  the 
premises  above  devised  to  my  said  trustees  upon  the  trusts  herein- 
before mentioned,  she  shall  take  no  benefit  under  this  my  will ; 
but  the  same,  as  far  as  respects  any  provision  for  her  or  disposi- 
tion in  her  favor,  shall  be  void ;  and  in  the  event  of  her  attempt- 
ing to  enforce  her  claims  to  such  jointure,  or  any  part  thereof,  by 
any  of  the  powers  or  remedies,  given  to  her  or  her  trustees  by 
the  said  settlement  for  that  purpose,  I  do  direct  that,  in  every  such 
case,  the  trustees  or  trustee  for  the  time  being  under  this  my  will, 
do  and  shall,  instead  of  paying  to  my  said  wife  the  annuity  or  an- 
nuities hereinbefore  provided  for  her,  or  any  part  thereof,  make 
such  dispositions  of  the  rents  and  profits  of  my  said  estates,  hereby 
devised  to  them  and  which  they  are  hereby  empowered  to  receive, 
as  that  my  eldest  son,  for  whose  share  the  estates  charged  with 
the  said  jointure  are  hereinbefore  intended,  may  receive  a  com- 
plete indemnification,  and  the  just  proportion  between  my  two 
sons  as  to  the  benefit  to  be  derived  to  them  under  this  my  will  may 
be  equally  preserved  and  maintained. 

No.  536. — Pecuniary  Legacies. 

And  I  give  the  following  legacies  (that  is  to  say)  to  my  said 
wife  $10,000  for  her  immediate  occasions,  and  to  my  other  execu- 
tors and  trustees  above  named  $S,ooo  each,  as  a  small  acknowledg- 
ment for  the  trouble  they  will  have  in  the  execution  of  this  my 
will.  And  I  give  to  my  nephew  A.  B.  $j,ooo,  to  be  paid  to  him 
at  his  age  of  twenty-one;  to  C.  D.  $^,000;  to  my  niece  £.  F.  $j,- 
000  at,  and  when  she  shall  arrive  at  her  age  of  twenty-one,  or 
be  married ;  to  my  nephew  G.  H.  $5,000  at  his  age  of  tzvcnty-onc, 
with  interest  in  the  meantime ;  unto  /.  /.  and  K.  J.,  children  of 
my  niece  L.  J.,  $300  each ;  all  the  said  legacies  to  be  paid  to  the 
respective  legatees  within  tivch-e  months  after  my  decease  (saz'e 
and  except  those  gkm  to  my  said  wife,  my  said  trustees  and  ex- 
ecutors, and  my  employees,  which  are  to  be  paid  immediately  after 
my  death).  And  I  give  unto  the  said  S.  S.,  the  daughter  of  M. 
S.,  the  sum  of  $5,000  on  the  day  of  her  marriage ;  and  I  give  after 
her  decease  the  said  sum  of  $5,000  unto  such  child  or  children  of 
the  said  S.  S.  as  shall  attain  the  age  of  tzventy-onc  years,  to  be 
divided  among  them  (if  more  than  one)  in  equal  shares,  and  if 
but  one.  the  wliolc  to  go  to  such  one  child  as  shall  attain  the  said 
age.     The  portion  op  portions  of  such  of  them  as  may  attain  the 


37^  New  Book  of  Forms. 

said  age  in  the  liftime  of  the  said  5".  S.,  to  be  a  vested  interest  or 
vested  interests,  though  not  payable  till  after  her  death,  and  the 
interest  of  the  presumptive  portions  of  such  of  her  children  as 
may  be  under  the  said  age  at  the  time  of  her  death,  or  so  much 
thereof  as  shall  be  thought  necessary  to  be  applied  for  or  toward 
the  maintenance  and  education  of  such  infant  child  or  children, 
until  he,  she  or  they  shall  attain  the  said  age ;  and  the  surplus  divi- 
dends or  interest  which  may  not  be  applied  for  that  purpose  to 
accumulate  and  go  along  with  the  original  share  or  shares ;  or  in 
case  there  shall  be  no  such  children  who  shall  attain  the  said  age, 
such  accumulations  to  fall,  together  with  the  principal  sum,  into 
my  residuary  personal  estate.  And  I  give  unto  N.  0.,  daughter 
of  my  nephew  T.  0.,  $3,000,  but  the  same  not  to  be  vested  in,  or 
paid  to  her  till  she  shall  attain  the  age  of  twenty-one  years,  and 
not  to  bear  interest  in  the  meantime.  I  give  after  the  decease  of 
R.  S.  unto  such  child  or  children  of  him  the  said  R.  S.,  born  in  his 
lifetime  or  after  his  decease,  as  shall  attain  the  age  of  twenty-one 
years  $3,000,  the  same  to  be  divided  among  them,  if  more  than 
one,  in  equal  shares,  and  if  but  one,  the  whole  to  go  to  such  one 
child  as  shall  attain  the  said  age,  and  not  to  bear  interest,  save 
that  in  case  of  the  death  of  the  said  R.  S.  having  a  child  or  chil- 
dren under  the  age  of  twenty-one  years,  my  will  is,  that  my  said 
trustees  or  trustee  for  the  time  being  shall  and  may  pay  and  apply 
any  sum  not  exceeding  the  sum  of  $1,000  per  annum,  by  equal 
quarterly  payments,  for  and  toward  the  maintenance  and  educa- 
tion of  such  infant  child  or  children,  until  he,  she  or  they  shall 
attain  the  age  of  tzvcnty-one  years.  And  I  will  that  the  portions 
of  such  children  of  the  said  R.  S.  as  shall  attain  the  age  of  iwenty- 
one  years  in  her  lifetime  shall  be  vested  interests,  though  not  pay- 
able till  after  his  death. 


^o.  537. — A  Devise  of  a  Sum  to  be  Applied  in  Releasing  Poor 

Prisoners. 

I  direct  that  my  executors  shall,  within  twelve  months  after 
my  decease,  pay  out  and  expend  the  sum  of  $23,000  in  releasing 
and  discharging  such  poor  prisoners  who  have  been  in  their  opin- 
ion unjustly  convicted,  or  who  have  been  justly  convicted  but  un- 
justly punished  or  whose  conduct  has  been  industrious  and  vir- 
tuous while  in  prison,  whose  families  are  in  want,  and  whose  con- 
finement has  been  owing  to  losses  and  misfortunes,  and  not  to 
idleness,  drunkenness  or  debauchery  or  sporting. 

No.  538. — A  Bequest  of  Jewels,  Furniture,  etc,  to  the  Wife 
of  the  Testator. 

I  also  give  and  bequeath  to  my  said  wife  all  the  ornaments  of 
her  person  purclmsed  since  our  marriage,  and  all  my  jewels,  plate. 


Will,  Disposition  of  Property  dy.  379 

linen,  china,  and  all  our  household  goods  and  furniture  whatso- 
ever and  wheresoever,  and  all  our  books,  and  all  horses  and  other 
cattle,  and  our  chaise,  carts,  carriages  and  implements  of  hus- 
bandry, and  also  all  our  stock  of  wines  and  other  liquors  whatso- 
ever, to  hold  to  her  as  her  own  absolute  property;  also  all  our 
pictures,  prints,  and  drawings.  I  have  already  mentioned  and 
provided  for  all  our  children. 

No.  539. — Charitable  Bequests. 

I  order  the  sum  of  $20,000  to  be  divided  as  my  wife  shall  think 
proper,  or,  in  case  of  her  death,  as  my  said  son  shall  think  proper, 
among  such  of  the  poor  persons  resident  in  S.,  where  I  now  live, 
as  shall  happen  to  be  upon  our  Christmas  list,  for  remembrance, 
and  shall  have  received  a  small  donation  by  my  order  at  the 
Christmas  next  preceding  my  death.  I  likewise  order  and  direct 
the  sum  of  $^0,000  to  be  divided  or  given  as  my  wife  shall  think 
proper,  to  or  amongst  any  poor  family  or  families  of  the  aforesaid 
5.  and  of  T.  which  shall  seem  to  her  to  be  most  deserving  of  such 
reward  or  assistance. 

I  give  to  the  said  J.  N.  the  sum  of  $jo,ooo  upon  trust  to  place 
out  the  same  on  government  or  real  securities,  at  interest,  in  the 
name  of  such  persons  as  he,  his  executors  or  administrators,  shall  / 
tliink  proper,  with  liberty  to  the  trustees  or  trustee  thereof,  for  ; 
the  time  being,  of  transposing  the  same,  to  the  intent  that  such 
trustees  or  trustee  thereof  do  apply  the  interest  or  dividends  aris- 
ing therefrom,  for  or  toward  the  education  of  four  poor  boys,  at 
or  in  the  said  school  at  G.  aforesaid,  to  be  from  time  to  time  nom- 
inated by  such  trustee  or  trustees  for  the  time  being. 

No.  540. — A  Bequest  of  an  Annuity  to  a  Wife  During  Wid- 
owhood. 

I  give  and  bequeath  unto  my  wife  S.  T.,  over  and  above  the 
estates  which  are  already  settled  upon  her,  one  annuity  or  yearly 
sum  of  $10,000  for  and  during  the  term  of  her  natural  life,  in 
case  she  shall  so  long  continue  my  widow ;  and  I  do  hereby  direct 
that  the  same  shall  be  charged  upon  the  interest  to  arise,  accrue, 
or  be  paid,  as  hereinafter  is  mentioned,  from  or  by  the  capital  to 
be  employed  in  my  trade  or  business  of  Frenzied  Finance,  which 
is  to  be  carried  on  by  my  said  exeaitors,  according  to  the  direc- 
tion hereinafter  for  that  purpose  given  and  contained.  And  that 
the  said  annuity  or  yearly  sum  of  $10,000  shall  be  paid  to  her, 
my  said  wife,  by  four  equal  quarterly  payments  in  every  year. 
But  in  case  my  said  wife  shall  marry  again  at  any  time  after  my 
decease,  then  and  in  such  case  I  revoke  the  said  bequest  of  the 
said  annuity  of  $10,000  hereinbefore  given  to  her,  and  direct  that 
the  same  shall  from  thenceforth  cease  and  determine,  etc. 


380  Ne;w  Book  0?  Forms. 


No.  541. — A  Clause  to  Prevent  an  Annuitant  Under  a  Will 
from  Parting  with  His  Annuity. 

And  my  will  further  is,  and  I  do  hereby  expressly  declare  and 
direct,  that  in  case  my  said  nephew  A.  B.  shall  alien,  sell,  assign, 
encumber  or  transfer,  or  in  any  manner  dispose  of  or  anticipate 
the  said  annuity  or  yearly  sum  of  $20,000  or  any  part  thereof, 
then  and  in  such  case,  and  from  and  immediately  after  such  alien- 
ation, sale,  assignment  or  transfer,  the  said  bequest  so  made 
thereof  as  aforesaid,  and  the  use  and  estate  so  given  to  him  therein, 
shall  cease  and  be  void,  to  all  intents  and  purposes  as  if  the  same 
had  not  been  mentioned  in  this  ray  will,  or  as  if  the  said  A.  B. 
were  naturally  dead. 

No.  542. — Power  to  the  Second  Wife  to  Reside  in  the  Dv/ell- 
ing-house  During  Widowhood. 

And  my  will  is,  that  my  said  wife  shall  and  may  reside  in 
the  house  wherein  I  now  dwell  (it  and  all  its  contents,  such  as 
furniture,  plate,  linen,  china,  and  glass,  being  my  separate  prop- 
erty, which  was  mine  when  I  took  her  to  wife),  situated  at  S., 
aforesaid,  in  case  she  shall  think  proper  so  to  do,  and  shall  and 
may  have  and  enjoy  the  use  of  all  my  furniture,  plate,  linen,  china 
and  glass,  which  shall  be  therein  at  my  decease,  for  and  during 
her  life,  if  she  shall  so  long  contimie  my  widow  and  unmarried, 
but  not  otherwise.  And  in  case  she  shall  think  proper  to  quit  the 
said  house  at  any  time  after  my  decease,  then  I  give  and  bequeath 
tinto  her,  my  said  wife,  the  sum  of  $yj,000  in  order  to  settle  her 
in  and  furnish  for  her  any  other  habitation  she  may  choose  to 
reside  in. 

No.   543. — Another  Form 

Also,  I  further  give  and  devise  unto  my  said  dear  wife  the  use 
and  occupation  of  my  house  at  A.  in  the  said  county  of  S.,  with 
the  gardens  and  offices  thereunto  belonging,  and  also  1,000  acres 
of  land  adjoining  thereto,  called  P.,  to  be  enjoyed  by  her  so  long 
as  she  shall  continue  my  widow  and  shall  choose  to  reside  in  the 
said  house;  and  I  do  direct  my  trustees  of  the  said  term  of  10 
years  hereinafter  limited,  to  permit  her  to  reside  in,  use  and  oc- 
cupy the  same  accordingly. 

Isjo.  544. — Bequest  of  the  Residue  of  the  Testator's  Estate. 

And  all  the  rest,  residue  and  remainder  of  my  estate  and  ef- 
fects, whatsoever  and  wheresoever,  and  of  what  nature  and  kind 
soever,  which  at  the  time  of  my  decease  I,  or  any  person  or  per- 
sons in  trust  for  me,  am,  or  are  possessed  of,  or  entitled  unto,  and 
not  hereinbefore  disposed  of,  I  give,  devise,  and  bequeath  unto 


Will,  Disposition  of  Property  by.  381 

the  said  A.  B.  and  C.  D.,  their  heirs,  executors,  administrators  and 
assigns,  according  to  the  nature  and  quahty  thereof  respectively, 
to  and  for  tlieir  own  separate  use  and  benefit. 

No.    545. — Appointment    of    Executors     and     Substitutionary 

Executors. 

And  I  do  hereby  nominate,  constitute  and  appoint  my  said  zmfe, 
together  with  the  said  trustees,  to  be  my  executrix  and  executors 
of  this  my  wall,  and  in  the  case  of  the  death  of  any  two  or  more 
of  them,  before  the  trusts  of  this  my  will  shall  be  fully  executed 
nnd  performed,  then  I  do  nominate,  constitute,  and  appoint  my 
tzi'o  oldest  sons,  for  the  time  being,  when  they  shall  respectively 
have  attained  the  age  of  eighteen  years,  to  be  executors  of  this 
my  will,  in  the  place  and  stead  of  such  two  or  more  of  them,  my 
said  wife  and  the  said  trustees,  as  shall  so  die  before  the  trusts 
of  my  said  will  shall  be  fully  executed  and  performed,  and  with 
all  the  same  power  and  powers,  authority  and  authorities,  to  all 
intents  and  purposes  whatsoever,  as  such  executrix  or  executors, 
who  shall  so  happen  to  die,  had  or  might  have  under  and  by  vir- 
tue of  this  my  will,  at  the  time  of  his  or  her  death. 

No.  546. — If  the  Trustees  and  Executors  Differ  in  Opinion, 
the  Matter  in  Difference  to  be  Decided  by  iJie  Majortiy. 

And  I  do  hereby  will  and  direct  that  in  all  cases  where  my  trus- 
tees and  executors  for  the  time  being  shall  happen  to  differ  in 
opinion,  the  matter  of  difference  shall  be  decided  by  the  major 
part  or  number  of  them,  my  said  trustees  and  executors,  and  be 
acted  upon  accordingly. 

No.  547. — A  Devise  to  Trustees  in  Trust  to  Sell. 

And  I  devise  my  said  house  in  S.,  and  the  furniture  thereof, 
unto  the  said  C.  D.  and  D.  E.,  their  heirs,  executors,  administra- 
tors and  assigns,  respectively :  Upon  trust,  that  they,  my  said  trus- 
tees, of  the  same  premises  for  the  time  being,  shall  and  do,  from 
and  immediately  after  my  decease,  sell,  dispose  of  and  convey  the 
said  dwelling-house,  and  the  fee  simple  thereof,  by  public  sale  or 
auction,  or  private  contract,  unto  any  person  or  persons,  who 
shall  be  willing  to  become  and  be  the  purchaser  and  purchasers  of 
the  same,  for  the  most  money  that  can  be  reasonably  had  for  the 
same,  and  to  receive  the  money  for  which  the  same  shall  be  sold, 
and  give  receipts  for  the  same — which  receipts  I  do  will  and  de- 
clare shall  exempt  the  purchasers  from  being  answerable  for  the 
misapplication  or  nonapplication  of  the  purchase  money,  cw  being 
concerned  to  see  to  the  application  thereof. 


382  NiiV.-  Book  o?  Forms. 

NOTE. — Tn  equity,  if  this  clause  is  omitted,  purchasers  in  many 
cases,  in  some  states,  are  considered  as  responsible  for  the  application 
of  the  money  according  to  the  trusts.  But  it  seems  otherwise  at  law, 
and   therefore   it   may   be   safely   omitted   in   this   state. 

No.  548. — A  Codicil,  Olographic  or  Witnessed,  Indorsed  upon 
the  Back  of  a  WilL 

I,  the  within  named  /.  H.,  of  A.  B.,  do  make  this  present 
codicil,  which  I  order  and  direct  shall  be  taken  as  and  for  part  of 
my  within  written  last  will  and  testament,  and  which  will  as  to 
all  and  every  the  uses,  limitations,  trusts,  gifts,  conditions,  lega- 
cies, bequests,  directions  and  appointments,  therein  mentioned, 
devised,  given  and  contained,  of  and  concerning  my  real  and  per- 
sonal estates  therein  mentioned,  I  do,  by  this  my  codicil,  estab- 
lish, ratify  and  confirm  (save  and  except  such  devises,  uses,  dispo- 
sitions, and  bequests  therein  mentioned,  as  are  by  me  hereinafter 
revoked  and  made  void).  Whereas  since  the  making  of  my  said 
will,  my  eldest  son,  J.  H.,  is  dead,  having  left  issue  a  third  son 
named  R.  H.,  now  living,  and  within  named  W.  R.,  is  also  dead; 
Xow,  I  herebv  give  and  devise  all,  etc.,  unto  my  said  grandson, 
R.  H.,  etc. 

No.    549, — A   Codicil   Ratifying   the  Will,   with   Recital,   etc. 

Whereas,  I,  A.  G.,  of  A.,  have  made,  published  and  declared  my 
last  will  and  testament  in  writing,  dated,  etc.  Now,  I,  the  said 
A.  G..  do  and  by  this  present  codicil  to  my  last  will  and  testament 
annexed,  confirm  and  ratify  my  said  last  will  and  testament,  and 
every  clause,  bequest,  and  devise  therein  contained,  etc. 

No.  550. — A  Codicil.  Altering  the  Will,  etc.,  with  Proper  Con- 
clusion and  Attestation. 

This  is  a  codicil  to  be  added  to  the  last  will  and  testament  of 
me  F.  G.,  of  A.,  which  will  bears  date  on  or  about,  etc.  First,  I 
do  herebv  ratify  and  confirm  my  said  vvill  in  all  respects,  save  so 
far  as  any  part  thereof  shall  be  revoked  or  altered  by  this  present 
codicil,  and  in  particular,  save  so  far  as  the  same  relates  to  the 
disposition  thereby  made  of  my  residuary  personal  estate,  in  favor 
of  my  eldest  son  T.  G.,  as  to  which  particular  I  do  hereby  revoke 
and  alter  my  said  will  and  all  the  rest  and  residue  of  my  per- 
sonal estate  and  eflfects,  by  my  said  will  given  and  bequeathed 
unto  m.y  said  son  F.  G.,  I  do  hereby  give  and  beqiieath  unto,  etc., 
And  T  give  and  bequeath  unto  my  brother  J.  H.  the  sum  of,  etc. 

And  I  do  hereby  revoke  all  former  and  other  codicils  by  me  at 
anv  time  heretofore  made.  Tn  witness  whereof,  to  this  present 
writing,  which  T  herebv  declare  to  be  a  codicil  to  my  last  will  and 
testament,  and  \vhich  T  direct  to  be  added  thereto,  and  to  be  taken 
as  part  thereof.  I  have  set  my  hand  and  seal  this  5c?  day  of  June, 
in  the  year  1905. 


Will,  Disposition  of  Propkriy  by.  383 


No.   551. — A   Revocation   of  an   Executor,   and   Another   Ap- 
pointed in  His  Stead,  by  a  Codicil. 

Whereas,  I,  M.  M.,  of  A.,  have  made  my  last  will  and  testament 
in  writing,  bearing  date,  etc.,  and  have  thereby  made,  ordained, 
constituted  and  appointed,  my  brother  in  law  N.  H.,  and  my  cousin 
G.  L.,  executors  of  my  said  will :  Now,  I  do  by  this,  my  writing 
(which  I  declare  to  be  a  codicil  to  my  said  will,  and  direct  to  be 
taken  as  part  thereof),  will  and  direct  that  my  said  brother  in 
law  N.  H.,  shall  not  be  an  executor  of  my  said  will,  and  do  hereby 
revoke  my  appointment  of  him  as  such ;  but  that  in  his  room  and 
stead  my  cousin  J.  B.,  of  A.,  shall  be  one  of  the  executors  of  my 
said  will,  jointly  and  together  with  my  said  cousin  G.  B.  And  I 
do  hereby  accordingly  make,  ordain,  constitute  and  appoint  them, 
the  said  /.  B.  arid  G.  B.,  joint  and  sole  executors  of  my  said  will, 
as  fully  and  effectually,  to  all  intents  and  purposes,  and  in  all  re- 
spects, as  if  they  only,  and  no  other  person  or  persons,  had  been , 
by  me  originally,  in  and  by  my  said  will,  constituted  and  appointed 
executors  thereof,  etc. 

In  witness,  etc 

No.  552. — A  General  Form  of  a  Codicil  to  a  Will  Where  Only 
Some  Few  Additional  Legacies  are  Given. 

Whereas,  I,  A.  'B.,  of  A.,  have  made  and  duly  executed  my  last 
will  and  testament  in  writing,  bearing  date,  etc.  Now,  I  do 
hereby  declare  this  present  writing  to  be  a  codicil  to  my  said 
will,  and  direct  the  same  to  be  annexed  thereto  and  taken  as  part 
thereof ;  and  I  do  hereby  give,  bequeath,  etc 

In  witness,  etc 


No.  553. — Another  General  Form  of  a  Codicil  Where  Several 
Legacies  are  Revoked. 

WTiereas,  I,  A.  B.,  of  A.,  have  by  my  last  will  and  testament  in 
writing,  duly  executed,  bearing  date,  etc.,  given  and  bequeathed 
to,  etc. :  Now,  I,  the  said  A.  B.,  being  desirous  of  altering  mv 
said  will  in  respect  to  the  said  legacies,  do  therefore  make  this 
present  writing,  which  I  will  and  direct  to  be  annexed  as  a  codicil 
to  my  said  will,  and  taken  as  part  thereof ;  and  I  do  hereby  revoke 
the  said  legacies  by  my  said  will  given  to  A.  B.,  and  I  do  give 
to  each  of  them,  the  said  A.  B.  and  C.  D.,  the  sum  of  $100  onlv  ; 
and  I  give  unto,  etc.  And  I  do  ratify  and  confirm  my  said  will  in 
evv  ything.  except  where  the  same  is  hereby  revoked  and  altered 
as  aforesaid. 

in  witness,  etc 


384  New  Book  of  Forms. 


No.    554. — Will — Nuncupative. 

In  the  Matter  of  the  Nuncupative  Will  of  /.  D.,  Deceased. 

On  the  -first  day  of  January,  1905,  J.  D.,  being  at  that  time 
doing  duty  on  the  ship  "Mary  Perlnns,"  at  sea,  and  in  peril  of 
death,  and  in  fear  of  death  [or  in  actual  military  service  in  the 
field;  or  in  expectation  of  immediate  death  from  an  injury  re- 
ceived on  the  said  day'],  in  the  presence  of  the  svibscribers,  did 
declare  his  last  will  and  wishes  concerning  the  disposition  of  his 
property,  in  the  following  words,  viz. : 

"I  desire  that  one  thousand  dollars,  now  in  The  California 
Sazings  and  Loan  Society  bank,  at  San  Francisco,  California,  be 
given  to  my  sister,  M.  D.,  which  I  will  and  devise  to  her." 

At  the  time  the  said  /.  D.  stated  the  foregoing  as  his  will,  he 
was  of  sound  mind  and  memory,  and  not  under  any  restraint,  and 
he  at  that  time  desired  us  to  bear  witness  that  such  was  his  wish, 
desire  and  will. 

Reduced  to  writing  by  us,  this  fifth  day  of  January,  1904. 

R.  R. 
J.  S. 

NOTE. — A  nuncupative  will  is  a  spoken  will,  and  must  be  made  under 
one  or  more  of  the  circumstances  described  in  the  form.  Not  over  one 
thousand  dollars  can  be  given  away  by  such  will.  There  must  also  be 
two  witnesses.  The  words  spoken  must  be  reduced  to  writing  within 
thirty  days,  and  offered  for  probate  within  six  months,  and  not  before 
fourteen  days  after  the  death  of  the  maker:  CaJ.  C.  C,  sees.  1289,  1290. 

No.      555. — Will  —  "Olographic"      (or      Soinetimes      "Holo- 
graphic") . 

San  Francisco,  June  5,  ipo^. 
I,  /.  S.,  hereby  make  my  last  will.  I  give  all  the  property  of 
whicli  I  die  possessed  to  my  wife,  M.  B.  S.  I  appoint  my  wife 
executrix  of  this  will,  without  bonds.  I  give  her  power  to  sell  all 
or  any  of  my  estate,  without  an  order  of  court ;  and  I  revoke  all 
the  wills  by  me  heretofore  made.  I  declare  that  this  will  is  en- 
tirely written,  dated,  and  signed  by  my  hand. 

/.  S. 

NOTE. — An  olographic  will  is  one  that  is  entirely  written,  dated  and 
signed  by  the  testator  himself.  It  is  subject  to  no  other  form,  and 
may  be  made  in  or  out  of  this  state,  and  need  not  be  witnessed.  The 
only  difference  between  a  witnessed  and  an  olographic  will  is  as 
above  stated,  therefore  all  forms  of  will  are  simple  wills  when  not 
■written,  etc.,  by  the  testator.  If  written  by  the  testator,  and  also 
witnessed,  it  is  an  olographic  will  and  may  be  established  either  by 
the  witnesses  or  by  proof  01  the  handwriting  of  the  testator.  Every 
letter,  word,  figure,  and  probably  punctuation  marlcs  and  crossing  of 
"t's"  and  dotting  of  "i's, "  if  the  sense  is  changed,  must  be  by  the 
maker:  CaL  C.  C,  sec.  1227. 


Will,  Disposition  of  Property  by.  385 

No.  556. — Attestation  of  Will,  Signed  in  Presence  of  Witnesses. 

The  forei^oing  instrument,  consisting  of  5  pai^cs,  includin^j  the 
page  signed  by  the  testator,  was,  at  the  date  thereof,  by  /.  W., 
the  maker  thereof,  signed  in  our  presence,  and  in  the  presence  of 
each  of  us,  and  at  the  time  of  his  subscribing  said  instrument  he 
declared  that  it  was  his  will,  and  at  his  request  and  in  his  pres- 
ence and  in  the  presence  of  each  other  we  have  subscribed  our 
names  as  witnesses  thereto. 

A.  B. — Residing  at  iio^  Maple  street,  in  the  city  and  county  of 
San  Francisco,   California. 

C.  D. — Residing  at  1/^7  Golden  Gate  arcenue,  in  saxB.  city  and 
countyA 

No.  557. — Attestation  of  Will  by  Person  at  the  Request  of 

Testator. 

The  foregoing  instrument,  consisting  of  5  pages,  including  the 
page  directed  to  be  signed  by  the  testator,  was  at  the  date  thereof 
directed  to  be  signed  by  /.  W.,  the  maker  thereof,  who  in  our 
presence,  and  in  the  presence  of  each  of  us,  directed  W.  N.,  to 
subscribe  his,  said  /.  W.'s  name  to  said  instrument,  which  he,  the 
said  W.  N.  did  then  and  there  do  in  our  presence  and  in  the  pres- 
ence of  each  of  us  and  in  the  presence  of  the  testator,  and  at  the 
time  of  said  subscribing  he,  the  testator,  declared  that  said  instru- 
ment was  his  will,  and  at  his  request  and  in  his  presence  and  in  the 
presence  of  each  other  we  have  subscribed  our  names  as  witnesses 
thereto. 

NOTE. — A  name  signed  to  a  will,  deed  or  other  writing,  at  the  re- 
quest of  another  is  the  act  of  the  person  who  makes  the  resquest:  Cal. 
C.  C,  sec.  14;  C.  C.  P.,  sec.  17.  The  same  sections  provide  that  "signa- 
ture or  subscription  includes  mark,  when  the  person  cannot  write,  his 
name  being  -mntten  near  it  by  a  person  who  writes  his  own  name  as  a 
witness;  provided,  that  when  a  signature  is  by  mark,  it  must,  in  order 
that  the  same  may  be  acknowledged,  or  may  serve  as  the  signature  to 
any  sworn  statement,  be  witnessed  by  two  persons  who  must  subscribe 
their  own  names  as  witnesses  thereto." 

The  words  "when  a  person  cannot  write"  refer  to  any  disability 
which  disables  the  person  from  "writing,"  "printing,"  or  "typewrit- 
ing his  name. ' '  They  include  a  person  who  never  learned  to  write 
his  name  and  one  who  is  or  was  a  skilled  penman,  but  is  either  tem- 
porarily or  permanently  unable  to  write  his  name. 

No.  558. — Attestation  of  Will — Acknowledged  by  Testator  to 
be  Signed  by  Him. 

The  foregoing  instrument,  consisting  of  5  pages,  including  the 

page  acknowledged  to  have  been  signed  by  the  testator,  and  he.  /. 

W.,  at  the  date  thereof,  in  our  presence  and  in  the  presence  of 

each  of  us,  acknowledged  to  us  that  his  signature  to  said  inslru- 

New  Forms — 25 


3S6  Nkw  Book  of  Forms. 

ment  was  made  by  him  (or  zvas  made  by  IV.  N.,  by  his  authority), 
and  he  at  the  same  time  in  our  presence  and  in  the  presence  of 
each  of  us  declared  that  said  instalment  was  his  will,  and  at  his 
request  and  in  his  presence  and  in  the  presence  of  each  other,  w€ 
have  subscribed  our  names  as  witnesses  thereto. 


PART  SECOND— COURTS. 

In  this  part,  the  names  of  forms  appHcable  to  superior  courts 
are  collected  under  different  heads,  commencing  with  affulaviis, 
and  are  indexed  in  the  same  order.  Those  applicable  to  inferior 
courts  are  collected  and  indexed  under  the  head  "Justices' 
Courts."  Forms  followed  by  the  words  "all  courts"  are  indexed 
in  the  general  index,  and  also  under  the  head  "Justices'  Courts." 
In  both  parts  the  notes  citing  reported  cases  are  indexed  with 
page  references  under  the  several  forms,  and  all  preliminary,  edi- 
torial or  original  text  matter  is  similarly  indexed.  Statutory  ref- 
erences to  the  laws  of  California  and  other  states  and  territories 
follow  each  form. 


AFFIDAVIT. 

Affidavits  are  used  to  verify  any  paper  in  an  action  or  in  any 
matter  permitted  by  law  to  be  done. 

The  affidavit,  or  a  copy,  certified  by  the  judge  of  the  court  or 
clerk  having  it  in  custody,  is  prima  facie  evidence  of  the  facts 
stated  therein. 

The  affidavit  may  be  taken  before  any  judge  or  clerk  of  any 
court,  or  any  justice  of  the  peace  or  notary  public  in  California. 

If  taken  in  another  state  of  the  United  States,  to  be  used  in 
California,  it  may  be  taken  before  a  commissioner  appointed  by 
the  governor,  or  before  a  notary  public  in  another  state,  or  be- 
fore a  judge  or  clerk  of  a  court  of  record  having  a  seal. 

If  taken  in  a  foreign  country  to  be  used  in  California,  it  must 
be  taken  before  an  ambassador,  minister,  consul,  vice-consul,  or 
consular  agent  of  the  United  States,  or  before  anv  judge  of  a 
court  of  record  having  a  seal,  in  such  foreign  country. 

If  taken  before  a  judge  of  a  court  in  another  state,  or  in  a  for- 
eign country,  the  genuineness  of  the  signature  of  the  judge,  the 
existence  of  the  court  and  the  fact  that  such  judge  is  a  member 
thereof  must  be  certified  by  the  clerk  of  the  court  under  the  seal 
thereof. 

NOTE.— California,  C.  C.  P.,  sees.  2009-201.5;  Alaska,  Co.ios.  pt.  4, 
c.  60,  sec.  638;  Arizona,  C.  C,  pars.  2S9-294;  Colorado,  Mill's  Stats' 
sees.  .3289-3294;  Idaho,  C.  C.  P.,  sees.  4447-4453;  Montana,  C.  C.  P.,  sees! 
3330-3336;  Nevada,  Comp.  Laws,  sec.  3498;  New  Mexico,  Comp.  Laws 
sees.  2558-2560;  North  Dakota,  C.  C.  P.,  sees.  5669,  5670;  Oregon  Codes 
»ad  Statutes,  sees.  820-823;  South  Dakota,  C.  C.  P.,  see«.  507,  oOs';  T'tah 
Kev.  Stats.,  sees.  3442-3448;  Washington,  Ballinger's  Codes,'  sees'  6054- 
©059;   Wyoming,  Eev.  Stats.,  sees.  3704,  3705. 

(387) 


388 


Nkw  Book  of  Forms. 


"Affidavit"— "Verification"— "Swom  to"— "Under  O-^tT^."— Those 
words  run  through  all  the  California  codes,  and  all  appear  to  have  the 
same  meaning  except  "verification,"  which  once  had  and  now  has 
sometimes  a  settled  meaning:  See  head  "Verification."  In  some  sec- 
tions of  the  codes  papers  nuist  be  "sworn  to"  and  others  made  "under 
oath,"  and  others  "verified,"  and  then  other  papers  of  the  same  char- 
acter and  of  greater  importance  need  not  be  authenticated  or  solemnized 
bv  oath  or  verification.  At  one  time  an  affidavit  without  the  venue 
stated  at  the  commencement  was  of  no  value;  and  "verification"  was 
synonymous  with  "oath"  or  "affidavit."  Now  the  expression  "veri- 
fied by  oath"  is  not  uncommon.  It  would  be  difficult  to  verify  a  paper 
by  affidavit  without  swearing  to  it  under  oath.  It  appears  to  be  cer- 
tain, however,  that  thp  words  "verified  under  oath,"  or  "verified" 
alone,  means  that,  if  false,  the  person  making  oath  to  it  is  liable  to 
th^  penalties  of  forgery,  except  where  a  statutory  form  of  verification 
permits  the  oath  to  be  made  upon  information  and  belief.  An  example 
of  this,  the  lowest  class,  is  a  "verification"  made  to  pleadings.  The 
highest  class  is  attached  to  accusations  against  attorneys  preceding  dis- 
barment and  claims  presented  to  executors  and  administrators;  but  the 
verification  to  a  pleading,  when  not  made  by  a  party  to  an  action,  may 
become  of  the  highest  class  and  the  foundation  of  a  criminal  prosecu- 
tion, unless  all  the  matters  in  the  verification  not  related  to  the  plead- 
ing are  also  expressly  stated  be  verified  upon  information  and  belief, 
which  is  never  permissible.  If  it  should  be  established  that  the  veri- 
fier (not  a  party  to  the  action)  did  not  know  all  the  facts  of  his  own 
knowledge  (if  he  "knew  them"  by  hearsay,  as  attorney),  or  if  the 
parties  (all  of  them")  were  absent  from  the  county,  the  verification 
might  be  held  to  be  of  the  highest  class. 

An  affidavit  made  upon  information  and  belief  is  not  entitled  to 
much,  if  any,  weight:  People  v.  Smith,  1  Cal.  9.  A  person  who  was 
a  juryman  made  an  affidavit,  and  another  person  made  affidavit  that 
the  juryman's  affidavit  was  correct;  held,  that  the  juryman's  affidavit 
was  now  the  affidavit  of  the  second  person:  Wilson  v.  Berryman,  5  Cal. 
44,  63  Am.  Dec.  78.  The  court  may  require  the  parties  who  made  affi- 
davits in  a  case  to  appear  before  it  at  the  trial  and  be  examined  in  re- 
lation to  the  facts  and  circumstances  referred  to  in  their  affidavits:  Bay- 
ley  V.  Eaton,  10  Cal.  126.  Affidavits  written  in  a  foreign  language  may 
be  excluded:  Spencer  v.  Deane,  23  Cal.  419.  An  affidavit  need  not  be 
signed  by  the  affiant:  Ede  v.  Johnson,  15  Cal.  53.  A  deputy  clerk  before 
whom  an  affidavit  is  taken  need  not  sign  the  clerk's  name  to  the  jurat, 
but  may  sign  his  own:  Peeople  v.  Wheatley,  88  Cal.  114,  26  Pac.  95.  A 
notary  was  an  attorney  in  an  action.  He  took  an  affidavit  to  be  used 
in  the  action.  Held  to  be  proper:  Eeaves  v.  Cowell,  56  Cal.  588.  Ab- 
sence of  a  venue  in  an  affidavit  is  generally  fatal  to  it:  Eeaves  v.  Cowell, 
56   Cal.   588.     In   that   case   a   circumstance   cured   that   objection. 

When  a  statute  does  not  designate  the  officer  before  whom  an  oath 
(or  affidavit)  may  be  taken,  it  may  be  taken  before  any  person  having 
general  authority  to  administer  and  certify  oaths:  Dunn  v.  Ketchum,  38 
Cal.  93.  A  statute  required  an  oath  to  be  administered  by  a  court 
or  judge.  It  was  administered  and  attested  by  the  clerk  in  open  court 
under  the  direction  of  the  court.  Held  to  be  in  compliance  with  the 
statute:  Oaks  v.  Eodgers,  48  Cal.  197.  It  is  a  rule  that  if  contrary 
matter  follows  a  "videlieit"  (viz.),  it  does  not  destroy  that  which 
precedes  it.  If  it  is  repugnant  to  the  preceding  matter  it  will  be  re- 
jected: Howard  v.  McChesney,  103  Cal.  536,  37  Pae.  523.  (See  "Veri^ 
fieation. ' ') 


Affidavit.  389 


No.  559. — Affidavit  to  Account. 
[Title  of  Court  and  Estate.] 

State  of  California, 
Coxinty  of  Butte, — ss. 

M.  J.,  of  said  city  and  county,  being  duly  sworn,  says :  I  am 
the  administratrix  of  the  estate  of  T.  J.,  deceased.  The  forego- 
ing account,  filed  for  the  first  or  second,  etc.,  account  of  my  ad- 
ministration of  the  said  estate,  is  in  all  respects  just  and  true, 
and  according  to  the  best  of  my  knowledge,  information  and  be- 
lief, contains  a  full,  true  and  particular  account  of  all  my  receipts 
and  disbursements  on  account  of  the  said  estate,  from  the  co)n- 
mencement  of  my  administration  to  the  sixteenth  day  of  June, 
Jp05,  and  of  all  sums  of  money  belonging  to  the  said  estate  which 
have  come  into  my  hands  as  such  administratrix,  or  which  have 
been  received  by  any  other  person  by  my  order,  or  authority,  for 
my  use ;  and  of  all  claims  presented,  and  allowed,  or  paid;  and  1 
do  not  know  of  any  error  or  omission  in  said  account  to  the  preju- 
dice of  any  person  interested  in  the  said  estate. 

[/  further  state  that  the  items  of  expenditure,  not  exceeding 
tzventy  dollars,  for  which  no  vouchers  are  annexed  or  produced, 
have  actually  been  paid  and  disbursed  by  me,  at  the  place  zvhere, 
the  date  zvhen,  and  to  the  parties  to  zvhom  the  said  payments  are 
stated,  in  the  said  account,  to  have  been  made  respectively;  and 
that  said  account  exhibits  not  only  the  debts  which  have  been  paid, 
but  also  a  statement  of  all  debts  which  have  been  duly  presented 
and  allowed  during  the  penod  embraced  in  the  said  account. 

NOTE. — In  California  six  months  after  his  appointment,  and  at  any 
time  when  required  by  the  court  either  upon  its  own  motion  or  upon 
the  application  of  any  person  interested  in  the  estate,  the  executor  or 
administrator  must  render  an  exhibit  under  oath,  showing  the  amount 
of  money  received  and  expended  by  him,  the  amount  of  all  claims  pre- 
sented against  the  estate,  and  the  names  of  the  claimants,  and  all  other 
matters  necessary  to  show  the  condition  of  its  affairs:  Cal.  C.  C.  P.,  see. 
1622.  In  all  places  see  "Exhibit  made  by  Executor  or  Administrator 
Six  Months  After  His  Appointment."  Alaska,  Codes,  pt.  4,  c.  86,  sec. 
859;  Arizona,  C.  C,  par.  185-i;  Idaho,  C.  C.  P.,  sec.  4243;  Montana,  C. 
C.  P.,  2780;  Nevada,  Comp.  Laws,  see.  2970;  North  Dakota,  Probate 
Code,  sec.  6486;  Oregon,  Codes  and  Statutes,  sec.  1699;  South  Dakota, 
Probate  Code,  sees.  135,  272j  Utah,  Bev.  Stats.,  see.  3941j  Wyoming, 
Rev.  Stats.,  sees.  4713-4719. 


39©  New  Book  of  Forms. 

No.  560. — Affidavit  for  Order  of  Arrest, 
[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

/.  D.,  being  duly  sworn,  says,  that  he  is  the  pJalntiif  in  the 
above-entitled  action ;  that  a  sufficient  cause  of  action  exists  in 
favor  of  plaintiff  against  said  defendant,  as  fully  appears  from 
the  verified  complaint  herein,  a  copy  of  which  complaint  is  here- 
to annexed  and  made  a  part  of  this  affidavit,  and,  affiant  avers 
that  the  allegations  therein  contained  are  true ;  that  it  is  an  ac- 
tion for  the  recovery  of  money  on  a  cause  of  action  arising  upon 
an  express  contract,  and  that  the  defendant  in  said  action  is  about 
to  depart  from  thi^s  state  itnth  intent  to  defraud  his  creditors. 

And  affiant  further  states  and  shows  the  following  facts  and 
ciraimstances  in  support  of  the  above  allegations  of  fraiul,  to 
wit :  Said  defendant  has  converted  all  his  property  into  cash  at 
much  less  than  its  real  value,  and  has,  under  the  assumed  name 
of  "B.  J."  secured  a  passage  on  the  steamer  "M.  T.,"  advertised 
to  sail  this  day  for  Panama,  and  is  nozv  on  said  steamer  with  in- 
tent to  leave  this  state.  Said  defendant,  although  he  has  met  this 
affiant  daily  within  the  past  week^  and  zvas  yesterday  requested 
to  pay  the  plaintiff's  claim,  has  never  informed  the  plaintiff  that 
he  intended  to  leave  the  state;  and  yesterday,  after  having  made 
full  preparations  to  leave  this  day,  he  promised  the  plaintiff  to  pay 
to-morrow,  at  plaintiff's  office. 

(All  courts.) 

NOTE. — Calif ornia,  C.  C.  P.,  sees.  479,  481;  Alaska,  Codes,  pt.  4,  c. 
12,  sec.  100;  Idaho,  C.  C.  P.,  sec.  3247;  Montana,  C.  C.  P.,  sees.  801, 
803;  Nevada,  Comp.  Laws,  sec.  3170;  North  Dakota,  C.  C.  P.,  sec.  5."  00; 
Oregon,  Codes  and  Statutes,  sec.  261;  South  Dakota,  C.  C.  P.,  sec.  159; 
Utah,  Eev.  Stats.,  sec.  3012;  Washington,  Ballinger's  Codes,  sec.  5i65; 
Wyoming,  Eev.  Stats.,  sec.  3959. 

No.  561. — Affidavit  for  Order  of  Arrest — Fraudulent  Debtor. 
[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

H.  W.,  being  duly  sworn,  says  that  he  is  the  plaintiff  in  the 
above-entitled  action ;  that  a  sufficient  cause  of  action  exists  in 
favor  of  plaintiff  against  said  defendant,  as  fully  appears  from 
the  verified  complaint  herein,  a  copy  of  which  complaint  is  hereto 
annexed  and  made  a  part  of  his  affidavit;  that  it  is  an  action  for 


Affidavit. 


39r 


the  recovery  of  money,  on  a  cause  of  artion  arising  upon  an  ex- 
press  contract,  and  that  the  defendant  in  said  action  has  been 
guilty  of  a  fraud  in  contracting  the  debt  and  incurring  the  obli- 
gations for  which  the  said  action  is  brought. 

And  affiant  furtlicr  states  and  shows  the  following  facts  and 
circumstances  in  support  of  the  above  allegations  of  fraud,  to  wit : 

On  the  first  day  of  August,  iQo6,  defendant  said  to  plaintiff,  at 
the  Palace  Hotel,  in  said  city  and  county,  that  he  had  $10,000  on 
deposit  with  the  Bank  of  Wells,  Fargo  &  Co.,  San  Francisco,  and 
requested  plaintiff  to  lend  him  one  thousand  dollars  until  ten 
o'clock  the  next  day;  and  plaintiff,  relying  upon  zvhat  defendant 
had  told  him  as  aforesaid,  then  and  there  loaned  him  the  said 
money,  which  he  promised  to  repay  at  the  said  hour  of  ten  A.  M. 
the  next  day.  That  defendant  nez'cr  had  any  money  on  deposit 
at  said  bank,  and  during  all  said  time  he  was  insolvent,  and  he  Ixas 
never  repaid  plaintiff  any  of  said  money,  and  he  obtained  the  same 
with  intent  to  cheat  and  defraud  plaintiff. 

(All  courts.) 


No.  562. — Affidavit  for  Order  of    Arrest — Removal,    etc,    of 
Property  with  Intent  to  Defraud.  x 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

/.  S.,  being  duly  sworn,  says,  that  he  is  the  plaintiff  in  the 
above-entitled  action;  that  a  sufficient  cause  of  action  exists  in 
favor  of  plaintiff  against  said  defendant,  as  fully  appears  from 
the  verified  complaint  herein,  a  copy  of  which  complaint  is 
hereto  annexed  and  made  a  part  of  this  affidavit ;  that  it  is  an  ac- 
tion for  the  recovery  of  money,  on  a  cause  of  action  arising  upon 
an  express  contract,  and  that  the  defendant  in  said  action  Ivas  re- 
moved and  is  about  to  dispose  of  all  his  property  with  intent  ta 
defraud  his  creditors. 

And  affiant  further  states  and  shows  the  following  facts  and 
circumstances  in  support  of  the  above  allegations  of  fraud,  to 
wit: 

Said  defendant  h<is  been  engaged  in  the  cigar  and  tobacco  busi- 
ness, and  during  last  night  had  all  his  tobacco  and  cigars,  the  ex- 
act value  of  whi-ch  is  unknozim  to  said  affiant,  but  zvhich  said  af- 
fiant believes  to  be  of  the  value  of  fifteen  hutidred  dollars,  or 
thereabouts,  being  all  the  property  of  said  defendant  not  exempt 
from  execution,  conveyed  from  his  place  of  business  on  Jackson 
street,  in  this  city,  to  some  place  or  places,  to  the  said  affiant  un- 
knozm,  and  has  to-day  sold  a  large  portion  of  said  tobacco  and 
cigars  for  cash,  and  falsely  represents  tJuit  he  has  only  removed 


392  New  Book  of  Forms. 

his  stock,  preparatory  to  putting  it  into  a  nezv  place  of  business 
Tvliich  he  is  about  to  open  in  this  city,  at  No.  210  Pacific  street; 
end  said  affiant  is  informed  by  A.  S.,  the  owner  of  the  premises 
last  aforesaid,  thai  the  same  have  not  been  leased  to  said  defend- 
ant, and  that  said  defendant  has  never  applied  to  said  S.  for  a 
lease  of  said  premises  for  any  purpose  whatever. 
(All  courts.) 

No.  563. — Affidavit  for  Attachment. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  San  Mateo, — ss. 

/.  D.,  being-  duly  sworn,  says  that  he  is  the  plaintiff  in  the 
above-entitled  action ;  that  the  defendant  in  the  said  action  is  in- 
debted to  the  said  plaintiff  in  the  sum  of  five  hundred  {500)  dol- 
lars, gold  coin  of  the  United  States,  over  and  above  all  legal  set- 
offs and  counterclaims,  upon  an  express  contract .  for  the  direct 
payment  of  money,  to  wit :  a  certain  promissory  note,  given  for 
the  sum  of  five  hundred  dollars,  United  States  gold  coin,  Tvith 
interest  thereon  at  the  rate  of  one  per  cent  per  month,  and  that 
such  contract  was  made  and  is  payable  in  this  state,  and  that  the 
payment  of  the  same  has  not  been  secured  by  any  mortgage  or 
lien  upon  real  or  personal  property,  or  any  pledge  upon  personal 
property.  [If  the  debt  has  been  secured,  then  say  that  the  se- 
curity, describing  it,  has,  tvithout  any  act  of  plaintiff,  or  the 
person  to  whom  the  security  zuds  given,  become  valueless.] 

That  the  said  attachment  is  not  sought  and  the  said  action  is 
not  prosecuted  to  hinder,  delay,  or  defraud  any  creditor  of  the 
said  defendant. 

(All  courts.) 

NOTE. — In  California  the  plaintiff,  at  any  time  after  issuing  the 
Bummons,  may  have  the  property  of  the  defendant  attached,  as  secur- 
ity for  the  satisfaction  of  any  judgment  that  may  be  recovered,  unless 
the  defendant  give  security  to  pay  such  judgment,  in  the  following 
cases:  1.  In  an  action  upon  a  contract,  express  or  implied,  for  the  direct 
payment  of  money,  where  the  contract  is  made  or  is  payable  in  this 
state,  and  is  not  secured  by  any  mortgage  or  lien  upon  real  or  per- 
eonal  property,  or  any  pledge  of  personal  property,  or,  if  originally 
eo  secured,  such  security  has,  without  any  act  of  the  plaintiff,  or  the 
person  to  whom  the  security  was  given,  become  valueless;  2.  In  an  action 
upon  a  contract,  express  or  implied,  against  a  defendant  not  residing 
in  this  state:  Cal.  C.  C.  P.,  sees.  537,  538;  Alaska,  Codes,  pt.  4,  c.  14, 
Bcc.  136;  Arizona,  C.  C,  par.  333;  Idaho,  C.  C.  P.,  sec.  3295:  Montana, 
C.  C.  P.,  sec.  891 ;  Nevada,  Comp.  Laws,  sec.  2550;  North  Dakota,  C. 
C  P.,  sec.  5356;  Oregon,  Codes  and  Statutes,  sec.  297;  South  Dakota, 
C.  C.  P.,  sec.  207;  Utah,  Eev.  Stats.,  sec.  3066;  Washington,  Ballinger'a 
Ciodes,  see.  5351;   Wyoming,  Rev.  Stats.,  sec.  3989. 


Affidavit.  393 

No.  564. — Affidavit  for  Attachment  Against  Nonresident- 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Santa  Cruz, — ss. 

/.  D.,  hcinf^  duly  S7vorn,  says,  that  he  is  the  plaintiff  in  the 
above-entitled  action  :  that  the  defendant  in  the  said  action  is  in- 
debted to  the  said  plaintiff  in  the  sum  of  four  hundred  and  fifty 
dollars,  gold  coin  of  the  United  States  (upon  an  express  contract 
for  tlie  direct  payment  of  money,  to  wit :  for  goods  sold  and  deliv- 
ered to  defendant),  over  and  above  all  legal  setoffs  or  counter- 
claims, and  that  the  said  defendant  is  a  nonresident  of  this  state. 

That  the  said  attachment  is  not  sou,s:ht,  and  the  said  action  is 
not  prosecuted  to  hinder,  delay  or  defraud  any  creditor  of  the 
said  defendant. 

(All  courts.) 

No.  565. — Affidavit  on  Claim  and  Delivery  of  Personal  Prop- 
erty. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Yolo, — ss. 

/.  D.,  being^  duly  sworn,  says,  that  he  is  the  plaintiff  in  the 
above-entitled  action  :  that  the  said  plaintiff  is  the  ozvner  of  [or  is 
lawfully  entitled  to  the  possession  of;  or,  plaintiff  being  the 
owner,  the  property  is  wrongfully  detained  by  defendant]  the  fol- 
lowing described  personal  property,  to  wit:  [description  of  the 
property.] 

That  the  said  property  is  in  the  possession  of.  and  wronsffully 
detained  bv.  the  defendant  in  the  said  action  ;  that  the  alleged 
cause  of  the  detention  of  the  said  property,  according:  to  this  af- 
fiant's best  knowleder^.  information,  and  belief  is  the  following, 
to  wit:  [State  cause  of  detention.] 

That  the  said  property,  or  any  part  thereof,  has  not  been  taken 
for  a  tax,  assessment,  or  fine,  pursuant  to  a  statute,  or  seized 
under  an  execution  or  an  attachment  against  the  property  of  the 
said  plaintiff,  and  that  the  actual  value  of  the  said  property  is 
four  hun'hcd  and  fifty  dollars. 

(All  courts.) 

NOTE. — In  California  where  a  delivery  is  claimed,  an  affidavit  mnst 
be  made  by  the  plaintiff,  or  by  some  one  in  his  behalf,  showing;:  1.  That 
the  plaintiff  is  the  owner  of  the  property  claimed  (particularly  de- 
Bcribing  it),  or  is  entitled  to  the  possession  thereof;  2.  That  the  prop- 
erty is  wrongfully  detained  by  the  defendant;  3.  The  alleged  cause  of 
the  detention  thereof,  according  to  his  best  knowledge,  information,  and 
belief:   C.  C.  P.,  sec.  510;   Alaska,  Codes,  pt.  4,  c.  13,  sec.  124;   Arizona, 


394  New  Book  oi?  Forms. 

C.  C,  par.  3812;  Idaho,  C.  C.  P.,  sec.  3272;  Montana,  C.  C.  P.,  sec. 
841;  Nevada,  Comp.  Laws,  sec.  2195;  North  Dakota,  C.  C.  P.,  sec.  5332; 
Oregon,  Codes  and  Statutes,  sec.  285;  South  Dakota,  C.  C.  P.,  sec.  185; 
Utah,  Eev.  Stats.,  sec.  3046;  Washington,  Ballinger's  Codes,  sees.  4119, 
5427,  5428;  Wyoming,  Rev.  Stats.,  sec.  4146. 

No.  566. — Affidavit — Contempt  Committed. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

/.  B.,  being  duly  sworn,  says :  That  he  is  a  duly  elected,  quali- 
fied and  acting  sheriff  of  said  county ;  that  on  the  second  day  of 
January,  1905,  in  the  town  of  Downieville,  Sierra  county,  he 
duly  served  a  subpoena  on  H.  C,  Esq.,  duly  issued  out  of  this 
court,  on  the  part  of  defendant,  commanding  the  said  H.  C,  Esq., 
to  appear  in  this  court  on  this  third  day  of  January,  1905,  at  the 
hour  of  ten  o'clock  A.  M.,  as  a  witness  on  behalf  of  defendant; 
tJukt  the  said  H.  C.  did  not  demand  his  fees  as  a  witness;  that 
when  the  said  H.  C.  was  served  as  aforesaid  he  said  that  he  would 
not  appear,  and  that  if  tJie  court  wanted  him  it  might  sejid  a  car- 
riage, and  he  would  then  consider  whether  he  would  obey  said 
subpoena;  that  the  said  H.  C.  has  not  obeyed  said  subpoena,  and 
did  not  appear  as  a  witness  this  day,  though  his  name  was  by  me, 
as  directed  by  the  judge  of  this  court,  called  in  a  loud  voice  at  the 
door  of  this  court. 

Wherefore,  affiant  prays  that  a  warrant  may  be  issued  for  the 
arrest  of  said  H.  C,  and  that  he  may  be  dealt  with  as  provided 
by  law. 

(All  courts.) 

NOTE. — In  California  the  following  acts,  in  respect  to  a  court  of 
justice,  are  contempts:  1.  Disorderly,  contemptuous,  or  insolent  behavior 
toward  the  judge  while  holding  the  court,  tending  to  interrupt  the  due 
course  of  a  trial  or  other  judicial  proceeding;  2.  A  breach  of  the  peace, 
boisterous  conduct,  or  violent  disturbance,  tending  to  interrupt  the  due 
course  of  a  trial  or  other  judicial  proceeding;  3.  Misbehavior  in  office, 
or  other  willful  neglect  or  violation  of  duty  by  an  attorney,  counsel, 
clerk,  sheriff,  coroner,  or  other  person  appointed  or  elected  to  perform 
a  judicial  or  ministerial  service;  4.  Deceit  or  abuse  of  the  process 
or  proceedings  of  the  court  by  a  party  to  an  action  or  special  pro- 
ceeding; 5.  Disobedience  of  any  lawful  judgment,  order,  or  process  of 
the  court;  6.  Assuming  to  be  an  officer,  attorney,  counsel  of  a  court,  and 
acting  as  su'>h  without  authority;  7.  Eescuing  any  person  or  property, 
in  the  custody  of  an  officer  by  virtue  of  an  order  or  process  of  such 
court;  8.  Unlawfully  detaining  a  witness  or  party  to  an  action  while 
going  to,  remaining  at,  or  returning  from,  the  court  where  the  action 
is  on  the  calendar  for  trial;  9.  Any  other  unlawful  interference  with 
the  process  or  proceedings  of  a  court;  10.  Disobedience  of  a  subpoena 
duly  served,  or  refusing  to  be  sworn  or  answer  as  a  witness;  11.  When 
summoned  as  a  juror  in  a  court,  neglecting  to  attend  or  serve  as  such. 


Affidavit.  395 

or  improperly  conversing  with  a  party  to  an  action  to  be  tried  at  such 
court,  or  with  any  other  person,  in  relation  to  the  merits  of  such 
action,  or  receiving  a  communication  from  a  party  or  other  person  in 
respect  to  it,  without  immediately  disclosing  the  same  to  the  court; 
12.  Disobedience,  by  an  inferior  tribunal,  magistrate,  or  officer  of  the 
lawful  judgment,  order,  or  process  of  a  superior  court,  or  proceeding 
in  an  action  or  special  proceeding  contrary  to  law,  after  such  action 
or  special  proceeding  is  removed  from  the  jurisdiction  of  such  in- 
ferior tribunal,  magistrate,  or  officer.  Disobedience  of  the  lawful  orders 
or  process  of  a  judicial  officer  is  also  a  contempt  of  the  authority  of  such 
officer. 

It  is  also  a  contempt  for  a  person  ejected  from  real  property  to  re- 
enter under  the  same  [old]  titles:  C.  C.  P.,  sec.  1209;  Alaska,  Codes, 
pt.  4,  c.  58,  sec.  609;  Arizona,  C.  C,  pars.  1430,  1723,  1724,  2760,  2761; 
Idaho,  C.  C.  P.,  sec.  3S22;  Montana,  C.  C.  P.,  sec.  2170;  Nevada,  Comp. 
Laws,  sec.  3555;  North  Dakota,  C.  C.  P.,  sec.  5934;  Oregon,  Codes  and 
Statutes,  see.  662;  South  Dakota,  C.  C.  P.,  sees.  172,  234,  330,  398,  409, 
477,  483,  494,  518,  782,  J.  C.  88,  89,  90,  91;  Utah,  Rev.  Stats.,  sec.  3358; 
Washington,  Ballinger's  Codes,  sec.  4798;  Wyoming,  Rev.  Stata.,  seca. 
3694,   3696,   3849,   3S50,   4072,   4474,   4500,    4508,   4536. 

No.  567. — Affidavit — Juror  After  Being  Summoned  Improper- 
ly Conversing  with  a  Person  Relating  to  Merit  of  Action — 
Contempt. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

A.  B.,  being  duly  sworn,  says :  That  he  is  a  deputy  sheriff  of 
the  said  county  of  Butte.  That  he  summoned  C.  D.  to  serve  as  a 
juror  in  the  above-entitled  action;  that  after  the  said  C.  D.  was 
summoned,  as  aforesaid,  he  improperly  conversed  with  L.  D.  re- 
lating to  the  merits  of  said  action ;  that  said  conversation  was  had 
for  the  purpose  of  causing  him  to  be  disqualified  to  sit  as  a  juror 
in  the  trial  of  said  action. 

Wherefore,  etc.  [the  same  as  in  No.  366]. 

(All  courts.) 

NOTE.— When  summoned  as  a  juror,  it  is  a  contempt  to  improperir 
converse  about  the  merits  of  an  action,  civil  or  criminal.  It  is  fre- 
quently done  for  the  purpose  of  being  disqualified:  Cal  C  C  P  sec 
1209,  subd.  9,  sec.  1212;  Idaho,  C.  C.  P.,  sec.  3819;  Montana,  C.  C.  P* 
sec.  2170;  Nevada.  Comp.  Laws,  sec.  3955;  North  Dakota.  C.  C.  P..  sec! 
5934;  Oregon,  Codes  and  Statutes,  sec.  662;  Utah,  Rev.  Stata  sec  3353  • 
Washington,   Ballinger's   Codes,   sec   4798,  ~'  ' 


396  New  Book  of  Forms 

No.  568. — Affidavit — Juror  Unlawfully  Conversing  with  a  Per- 
son About  Merits  of  Action — Contempt, 

[Title  of  Court  and  Cause.] 

State  of  CaJifornia, 
County  of  Butte, — ss. 

A.  B.,  being  duly  sworn,  says:  That  he  is  plaintiff  in  the  above- 
entitled  action,  and  C.  D.  is  a  defendant  in  said  action ;  that  said 
action  is  now,  on  this  3d  day  of  June,  IQ0§,  on  trial  before  said 
court  before  a  jury  [or  that  it  zvas  on  a  day  given  on  trial;  or  zvas 
set  for  trial,  a  jury  impounded  and  hearing  postponed  to  a  grz^n 
time]  ;  that  E.  F.  is  a  member  of  said  jury;  that  on  said  jd  day 
of  June,  said  E.  F.,  while  a  member  of  said  jun%  improperly  con- 
versed with  G.  H.  in  relation  to  the  merits  of  said  action. 

[Wherefore,  etc.  [the  same  as  in  No.  5(5(5]. 

(All  courts.) 

NOTE, — When  a  Tnenibpr  of  a  jnry,  sneh  conduct  is  conteraptnons  nn- 
Icss  the  juror  immediately  discloses  such  communication  to  the  courts 
Cal.  C.  C.  P.,  sec.  1209,  sulxl.  9,  sec.  1212;  Idaho.  C.  C.  P.,  sec.  3819; 
Montana,  C.  C.  P.,  sec.  2170;  Nevada,  Comp.  Laws,  sec.  3555;  Oregon, 
Codes  and  Statutes,  sec.  fi62;  Utah,  Rev.  Stats.,  sec.  3358;  Washin^n, 
Ballinger's   Code,   sec.   4798. 

No.    569. — Affidavit — Witness    Unlawfully    Detaining — Con- 
tempt, 

[Title  of  Court  and  Cause.] 

'  State  of  California, 
County  of  Butte. — ss. 

A.  B..  bein<j  duly  sworn,  says:  That  on  June  7d,  iQOfi,  he  was 
in  good  faith  served  with  a  subpoena  to  attend  on  said  June  ^d, 
as  a  witness  before  the  above-entitled  court,  which  is  a  case  where 
the  disobedience  of  a  witness  to  attend  upon  subpoena  may  be 
punished  as  a  contempt.  That  on  said  June  ^d  said  action  was 
on  the  calendar  for  trial.  That  on  said  day,  while  affiant  was  on 
his  wav  to  the  room  where  this  court  was  then  sitting,  he  was 
arrested  by  M.  L.  S.,  constable  of  said  Butte  tonmship,  upon  a 
warrant  of  arrest  issued  by  A.  L.  B.,  a  justice  of  the  peace  of  said 
township,  in  a  civil  action  brought  in  said  court  to  recover  the 
possession  of  a  dog  pup,  upon  a  complaint  alleging  that  affiant 
hnd  unjustly  detained  the  pup  to  prevent  its  being  foimd.  That 
affiant  exhibited  his  subpoena  to  said  constable,  but  he  refused  to 
permit  affiant  to  obev  said  subpoena. 

\^nierefore.  etc.  [the  same  as  in  No.  366]. 

(All  courts.) 


I 


Ai'iMDAviT.  397 

NOTE. — rilifornin.  C.  C.  P.,  sec.  1209,  anbd.  8,  sec.  1212.  Witnesa  not 
Riib.ioct  to  arrest  when:  Td.,  sec.  2067.  Arrest  in  civil  action:  Id.,  sec. 
479,  subd.  3.  A  dog  is  jiroperty:  Pen.  Code,  sec.  491;  Alaska,  Codes, 
pt.  4,  c.  58,  sec.  609;  I.laho,  C.  C.  P.,  sec.  3819;  Montana,  C.  C.  P.,  sec. 
2170;  Nevada,  Comn.  Laws,  sec.  3555;  North  Dakota,  C.  C,  sec.  5934; 
Oregon,  Codes  and  Statutes,  sec.  662;  Utah,  Rev.  Stats.,  sec  3358;  Wash- 
ington, Ballinger's  Codes,  sec.  4798. 

No.  570. — Affidavit — Unlawful  Interference  with  the  Proceed- 
ings of  a  Court — Contempt. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

A.  B.,  being  duly  sworn,  says :  That  he  is  plaintiff  in  the  above- 
entitled  action,  and  C.  D.  is  defendant.  That  said  case  is  set  for 
trial  on  June  5,  iQOj,  at  10  o'clock  A.  M.,  before  the  judge  of  said 
court  sitting  without  a  jury.  That  on  May  <?5,  190 f^,  plaintiff 
caused  E.  F.,  a  competent  and  material  witness  on  plaintiff's  be- 
half, to  be  subpoenaed  to  appear  before  said  court  at  said  trial. 
That  on  June  2,  iQOj,  said  defendant  dissuaded  said  witness  from 
attending  said  court  to  testify  on  behalf  of  plaintiff  in  said  action 
[or  that  he  dissuaded  him  not  to  attend  after  promising  to  at- 
tend ivithout  subpoena;  or  that  he  threatened  him  with  inquiry  if 
he  did  attend:  or  that  he  threatened  a  party  to  the  action  zfith 
injury  if  he  attended ;  or  offered  to  influence  tlve  court  or  jury  on 
behalf  of  a  p-arty.]  That  said  witness  did  not  attend  at  said  trial 
because  of  said  dissuasion. 

Wherefore,  etc.   [the  same  as  in  No.  566]. 

(All  courts.) 

NOTE. — Such  conduct  is  unlawful  interference  with  the  process  or 
proceedings  of  a  court:  Cal.  C.  C.  P.,  sec.  1209,  subd.  9.  sec.  1212.  See 
Tn  re  Buckley,  69  Cal.  31,  10  Pac.  69;  Alaska,  Codes,  pt.  4.  c.  58,  sec. 
609;  Idaho,  C.  C.  P.,  sec.  3819;  Montana,  C.  C.  P.,  sec.  2170;  Nevada, 
Comp.  Laws,  sec.  3555;  North  Dakota,  C.  C.  P.,  see.  59.34;  Oregon,  Codes 
and  Statutes,  sec.  662;  Utah,  Rev.  Stats.,  sec.  3358;  Washington,  Bal- 
linger's Codes,  sec.  4798. 

No.  571. — Affidavit — Rescuing  a  Person  in  the  Custody  of  an 
Officer — Contempt- 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss, 

A.  B.,  being  sworn,  says:  That  he  is  a  deputy  sheriff  of  the 
county  of  Butte.  That  under  the  authority  of  a  warrant  issued 
out  of  said  court  and  by  order  of  tlie  judge  thereof,  and  delivered 


398  New  Book  of  Forms. 

to  him  by  the  district  attorney,  he,  on  the  jc/  day  of  Juft^,  ipoj, 
arrested  and  took  into  custody  C.  D.,  the  person  said  warrant  di- 
rected him  to  arrest,  and  bring  before  tliis  court.  That  on  the 
day  of  said  arrest,  the  said  C.  D.  was  by  E.  F.  and  over  thirty 
others,  to  affiant  unknown,  taken  from  the  custody  of  afifiant  with 
violence  and  irresistible  force.  That  affiant  was  disarmed  and 
beaten  by  said  E.  F.  and  others. 

Wherefore,  etc.   [the  same  as  in  No.  566]. 

(All  courts.) 

NOTE. — Eeseuing  a  person  or  property  in  the  enstody  of  an  officer 
by  virtue  of  any  order  or  process  of  a  court  is  a  contempt:  Cal.  C.  C. 
P.,  sec.  1209,  subd.  7,  sec.  1212;  Alaska,  Codes,  pt.  4,  c.  58,  sec.  609; 
Idaho,  C.  C.  P.,  sec.  3819;  Montana,  C.  C.  P.,  sec.  2170;  Nevada,  Comp. 
Laws,  sec.  3555;  North  Dakota,  C.  C.  P.,  sec.  5934;  Oregon,  Codes  and 
Statutes,  sec.  662;  Utah,  Eev.  Stats.,  sec.  3358;  Washington,  Ballinger'a 
Codes,  sec.  4798. 

No.  572. — Affidavit — Referee  Neglects  to    Take    Testimony — 

Contempt. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

A.  B.,  being  duly  sworn,  says :  That  he  is  the  plaintiff  in  the 
above-entitled  action.  That  on  June  j,  1905,  said  action  was  re- 
ferred to  C.  D.  to  take  the  testimony  and  report  his  finding  and 
judgment.  That  he  consented  to  act  and  did  act  to  the  extent  of 
liearing  all  plaintiflf's  testimony  and  the  submission  of  his  case. 
That  when  said  case  was  submitted  on  the  part  of  plaintiflf,  to  wit, 
on  June  20,  1905,  said  referee  announced  that  he  would  take  de- 
fendant's testimony,  commencing  on  June  22,  ipoj,  at  a  time  and 
place  then  agreed  upon  by  plaintiff  and  defendant.  That  at  the 
time  and  place  agreed  upon  said  referee  neglected  to  appear,  and 
affiant  has  repeatedly  requested  him  to  take  testimony  for  defend- 
ant so  that  the  case  might  be  reported  back  to  the  court ;  but  he  ob- 
stinately refused,  and  does  refuse,  to  proceed  further  in  the  mat- 
ter. 

Wherefore,  etc.   [the  same  as  in  No.  566]. 

(All  courts.) 

NOTE. — California,  C.  C.  P.,  see.  1209,  subd.  3;  Alaska.  Codes,  pt.  4, 
c.  58,  sec  609;  Idaho,  C.  C.  P.,  see.  3819;  Montana,  C.  C.  P.,  sec.  2170; 
Nevada,  Comp.  Laws,  sec.  3555;  North  Dakota,  C.  C.  P.,  see.  5934;  Ore- 
gon, Codes  and  Statutes,  sec.  662;  Utah,  Eev.  Stats.,  see.  3358;  Wash- 
ington, Ballinger'a  Codes,  sec.  4798. 


Affidavit. 


399 


No.  573. — Affidavit — Refusal  of  Permission  to  Tcike  Copy  of 
Entry  of  Account — Contempt, 

[Title  of  Court  and  Cause.] 

State  of  Calif ornui, 
County  of  Butte, — ss. 

A.  B.,  being  sworn,  says :  That  he  is  the  defendant  in  the  above- 
entitled  action.  That  on  June  j,  1905,  the  judge  of  said  court 
made  an  order  in  writing  that  C.  D.,  the  plaintiff  in  said  action, 
give  alYiant,  within  ten  days  from  said  ^d  day  of  June,  permission 
to  take  a  copy  of  the  account  described  in  said  order.  That  on 
the  4th,  ^th,  6th,  yth,  8th,  pth,  loth,  12th,  i^th,  days  of  said 
month  of  Jufue,  between  the  hours  of  8  A.  M.  and  5  P.  M.,  of  said 
days  affiant  went  to  the  place  of  business  of  said  plaintiff,  where 
said  account  is  kept,  to  wit,  plaintiff's  grocery  store,  No.  p/j  Ma- 
ple street,  in  the  town  of  Oroville,  in  said  county,  and  demanded 
of  plaintiff  permission  to  take  a  copy  of  said  account ;  but  each 
and  every  application  was  refused ;  and  when  application  was 
made  on  June  ijth,  affiant  requested  plaintiff  to  fix  a  day  and  hour 
when  said  copy  could  be  taken ;  but  he  refused  to  do  so. 

Wherefore,  etc.   [the  same  as  in  No.  566].  , 

(All  courts.) 

NOTE, — A  party  making  such  refusal  may  be  punished  for  contempt: 
Cal.  C.  C.  P.,  sec.  1000;  Alaska,  Codes,  pt.  4,  c.  58,  sec.  609;  Idaho.  C. 
C.  P.,  sec.  3819;  Montana,  C.  C.  P.,  sec  2170;  Nevada,  Comp.  Laws, 
see.  3555;  North  Dakota,  C.  C.  P.,  sec.  5934;  Oregon,  Codes  and  Statutes, 
sec.  662;  Utah,  Eev.  Stats.,  sec.  3358;  Washington,  Ballinger's  Codes, 
sec.  4798. 

No,  574. — Affidavit — Attorney  Assuming  to  be  Without  Au- 
thority— Contempt. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

A.  B.,  being  duly  sworn,  says :  That  in  the  above-entitled  action 
the  name  of  C.  D.  is  signed  to  the  complaint  as  attorney  for  plain- 
tiff, and  he  has  appeared  in  said  action  as  such  attorney.  That 
said  action  is  brought  to  obtain  a  divorce  from  plaintift"'s  alleged 
■wife.  That  the  said  C.  D.  has  not  been  admitted  to  practice  law 
by  the  supreme  court  of  the  State  of  California,  nor  by  the  court 
in  which  said  action  is  pending. 

Wherefore,  etc.  [the  same  as  in  No.  566]. 

(All  courts.) 


400  New  Book  op  Forms. 

NOTE. — Assuming  to  be  an  officer,  attorney,  eonnsel  of  a  court,  and 
acting  as  such  without  authority  is  a  contempt:  Cal.  C.  C.  P.,  sees.  281, 
1209,  subd.  6,  sec.  1212;  Alaska,  Codes,  pt.  4,  c.  58,  see.  609;  Idaho,  C. 
C.  P.,  sec.  3819;  Montana,  C.  C.  P.,  sec.  2170;  Nevada,  Comp.  Laws,  see. 
3555;  North  Dakota,  C.  C.  P.,  sec.  5934;  Oregon,  Codes  and  Statutes, 
sec.  662;  Utah,  Eev.  Stats.,  sec.  3358;  Washington,  Ballinger's  Codes, 
sec.  4798. 


No.  575. — Affidavit — Abuse  of  the  Process  of  a  Court — Con- 
tempt. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

A.  B.,  being  duly  sworn,  says :  That  he  is  the  defendant  in  the 
above-entitled  action.  That  C.  D.,  the  plaintiiT,  is  an  attorney  at 
law.  That  defendant  was  indebted  to  plaintiff  for  the  services 
described  in  said  complaint ;  but  the  amount  of  said  indebtedness 
was  the  issue  to  be  tried  in  said  action.  That  defendant  is  the 
owner  of  unencumbered  real  estate  standing  of  record  in  his 
own  name  in  said  county  of  Butte  of  the  assessed  value  of  over 
$50,000,  and  he  has  in  said  county  unencumbered  personal  prop- 
erty of  the  value  of  over  $40,000.  That  the  amount  involved  in 
said  action  does  not  exceed  $400,  and  the  interests  and  costs  which 
will  not  exceed  $100.  That  said  action  is  set  to  be  tried  on  De- 
cember ij,  1905.  That  on  November  j,  1905,  defendant  caused 
an  attachment  to  be  issued  in  said  action  and  caused  a  trunk  and 
valise  belonging  to  defendant  to  be  attached  and  taken  from  his 
possession,  when  he  was  on  the  platform  of  a  railroad  train  ready 
to  take  the  cars  for  Sacramento.  That  im.mediately  after  said  at- 
tachment, and  before  the  departure  of  the  train,  plaintiff  said  to 
afhant  that  he  would  release  said  attachment  if  affiant  would  give 
him  a  check  for  $250.  That  affiant  gave  plaintiff  said  check,  and 
said  attachment  was  released. 

Wherefore,  etc.  [the  same  as  in  No.  566]. 

(All  courts.) 

NOTE. — Deceit  or  abuse  of  the  process  or  proceedings  of  a  court  is 
a  contempt:  Cal.  C.  C.  P.,  sec.  1209,  subd.  4,  sec.  1212;  Alaska,  Codes, 
pt.  4,  c.  58,  609;  Idaho,  C.  C.  P.,  sec.  3819;  Montana,  C.  C.  P.,  see.  2170; 
Nevada,  Comp.  Laws,  see.  3555;  North  Dakota,  C.  C.  P.,  sec.  59.34;  Ore- 
gon, Codes  and  Statutes,  sec.  662;  Utah,  Eev.  Stats.,  sec.  3358;  Wash- 
ington, Ballinger's  Codes,  sec.  4798. 


APFroAViT.  401 

jsTo.  576. — Affidavit — Subsequent  Application  for  Order  Once 
Refused — Contempt. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

A.  B.,  being  sworn,  says:  That  he  is  the  attorney  for  plaintiff 
in  the  above-entitled  action.  That  defendant  appeared  in  said 
action  by  C.  D.,  his  attorney,  and  demurred  to  the  complaint. 
That  said  demurrer  was  overruled  and  defendant  allowed  to  an- 
swer within  ten  days  from  June  j,  iQO$.  That  before  said  time 
had  expired,  defendant,  by  his  said  attorney,  applied  to  the  judge 
of  said  court  for  an  order  extending  the  time  for  serving  and  fil- 
mg  said  answer,  and  said  judge  extended  said  time  to  June  jo, 
7905.  That  on  June  jo,  iQOj,  said  attorney  applied  to  said  judge 
for  a  further  extension  of  ten  days,  but  said  judge  refused  to  ex- 
tend such  time.  That  on  the  same  day,  notwithstanding  said  re- 
fusal, said  attorney  applied  to  the  judge  of  the  same  court,  to  wit. 
Department  No.  g,  and  obtained  an  extension  of  time  to  answer 
as  aforesaid,  to  July  8th,  1905. 

Wherefore,  etc.  [the  same  as  in  No.  566]. 

(All  courts.) 

NOTE. — ^Under  Btich  circumstances  it  is  contempt  of  court  to  make 
such  application  to  any  other  jndpe  or  court  commissioner.  This  does 
not  apply  if  the  judge  refuses  the  extension  because  of  informality 
in  the  papers  or  proceedings  necessary  to  obtain  the  order;  or  to  mo- 
tions made  with  liberty  to  renew  the  same:  Cal.  C.  C.  P.,  sees.  1S2, 
183;  Idaho,  C.  C.  P.,  sec.  3038;  Montana,  C.  C.  P.,  sec.  2170;  Nevada, 
Comp.  Laws,  sec.  3555;  North  Dakota,  C.  C.  P.,  sec.  5934;  Oregon,  Codes 
and  Statutes,  sec.  662;  Utah,  B*v.  Stats.,  sec.  3358;  Washington,  Bal- 
linger's  Codes,  see.  4798. 

No.  577. — Affidavit — Re-entry  into  Real  Property  After  Eject- 
ment— Contempt, 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

A.  B.,  being  sworn,  says :  That  he  is  the  plaintiff  in  the  above- 
entitled  action,  and  C.  D.  is  a  defendant  m  said  action.  That  on 
June  5,  Jgo^,  a  judgment  was  rendered  by  said  court  restoring 
])laintiff  to  the  possession,  and  evicting  said  C.  D.  therefrom. 
That  under  the  order  of  said  court,  based  upon  said  judgment, 
said  C.  D.  was  on  July  i,  igoj,  by  the  sheriff  of  said  cor.nty  of 
Butte,  dispossessed  from  said  premises,  and  plaintiff  was  by  said 
New  Forms — 26 


402  New  Book  o^  Forms. 

sheriff  placed  in  possession  thereof ;  that  on  the  loth  day  of  said 
month  of  July,  in  the  absence  of  plaintiff  from  said  premises,  said 
defendant  re-entered  into  and  took  possession  of  said  premises, 
and  he  is  now  in  the  possession  thereof. 
Wherefore,  etc.  [the  same  as  in  No.  566]. 

NOTE. — Under  such  cirenmstance3,  or  where  a  person  aids  or  abets  in 
dispossessing  an  evicted  person,  he  is  guilty  of  contempt.  The  court 
will,  after  conviction  for  contempt,  immediately  issue  an  alias  process 
directing  the  sheriff  to  restore  the  plaintiff,  or  his  grantee,  to  the  pos- 
session: Gal.  C.  C.  P.  sees.  1210-1212;  Idaho,  C.  C.  P.,  see.  3820;  Mon- 
tana, C.  C.  P.,  sec.  2170;  Nevada,  Comp.  Laws,  sec.  5555;  North  Dakota, 
C.  C.  P.,  sec.  5934;  Oregon,  Codes  and  Statutes,  sec.  662;  Utah,  Bev. 
Stats.,  see.  3358;  Washington,  Ballinger's  Codes,  sec.  4798, 

No.  578. — Affidavit — Disobedience  to  Court's  Mandate — Con- 
tempt. 

[Title  of  Court  and  Cause.] 

State  of  California, 
Coimty  of  Butte, — ss. 

A.  B.,  being  duly  sworn,  says :  That  he  is  the  attorney  for  plain- 
tiff in  the  case  of  F.  P.  H.  v.  L.  &  A.,  hereinafter  referred  to. 
That  on  June  5,  190^,  the  superior  court  in  and  for  said  county 
of  Butte  issued  a  peremptory  writ  commanding  C.  D.,  a  justice  of 
the  peace  in  and  for  the  township  of  Butte,  immediately  after  the 
receipt  of  said  writ  to  issue  execution  on  the  judgment  for  plain- 
tiff in  the  action  of  F.  P.  H.  v.  L.  &  A.  for  $100  damages  and 
costs,  by  said  C.  D.  entered  in  the  docket  of  said  justice  of  the 
peace,  on  March  p,  ipo^,  and  to  deliver  said  execution  to  A.  B., 
the  attorney  of  the  plaintiff  in  said  action. 

That  on  said  ^d  day  of  June,  affiant  delivered  the  said  writ  to 
the  said  C.  D.,  and  requested  him  to  immediately  issue  said  writ ; 
and  thereafter,  on  the  4th,  ^th,  and  6th  of  said  month  of  June, 
he  made  the  same  request,  but  said  justice  of  the  peace  has  not 
issued  said  writ. 

Wherefore,  etc.   [the  same  as  in  No.  566]. 

NOTE. — Disobedience  of  any  lawful  judgment  or  order  of  a  court  is 
a  contempt:  Cal.  C.  C.  P.,  sees.  1209,  1211,  subd.  5;  Alaska,  Codes,  pt. 
4,  c.  58,  sec.  609;  Idaho,  C.  C.  P.,  sec.  3781;  Montana,  C.  C.  P.,  sec.  21  TO; 
Nevada,  Comp.  Laws,  sec.  3555;  North  Dakota,  C.  C.  P.,  sec.  5934;  Ore- 
gon, Codes  and  Statutes,  sec.  662;  Utah,  Bev.  Stats.,  sec.  3358;  Wash- 
ington, Ballinger's  Codes,  sec.  498. 


Affidavit.  403 

No.  579.— Affidavit— Willful  Neglect  to  Enter  Default  by  Clerk 

— Contempt. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss, 

A.  B.,  being  duly  sworn,  says:  That  he  is  the  attorney  for 
plaintiff  in  the  above-entitled  action.  That  C.  D.  is  the  clerk  of 
said  court.  That  on  June  3,  igoj,  the  said  action  was  tried  in 
said  court  and  judgment  was  ordered  for  plaintiff  in  the  sum  of 
$1,763.30  and  $112.30  costs.  That  the  said  clerk  willfully  neg- 
lected to  enter  said  judgment  at  the  time  and  in  the  form  and 
manner  as  required  by  law. 

Wherefore,  affiant  prays  for  an  order  citing  the  said  C.  D.  to 
shovv  cause  why  he  should  not  be  punished  for  contempt,  because 
of  his  violation  of  his  duty  as  clerk  of  said  court. 

NOTE.— The  word  "willfully,"  as  used  in  section  1209,  implies  sim- 
ply a  purpose  or  willinfjnesf:  to  commit  the  act  or  make  the  omission. 
It  does  not  require  any  intent  to  violate  the  law  or  to  acquire  any  ad- 
vantage: Pen.  C,  sec.  7.  The  clerk,  'f  stubborn,  capricious,  obstinate, 
contumacious,  perverse,  self-willed  or  pig-headed,  acted  willfully:  Cal 
C.  C.  P.,  sec.  1209,  aubd.  ?.,  sec.  1212;  Alaska,  Codes,  pt.  4,  c.  58,  sec! 
609;  Idaho,  C.  C.  P.,  sec.  3819;  Montana,  C.  C.  P.,  see.  2170;  Nevada, 
Conip.  Laws,  sec.  3555;  North  Dakota,  C.  C.  P.,  sec.  5934;  Oregon,  Codes 
and  Statutes,  sec.  662;  Utah,  Rev.  Stats.,  sec.  3358;  Washington,  Bal- 
linger's  Codes,  sec.  4798. 

No.  580. — ^Affidavit — Willf'^^^v  Npc-lor^+ing  to  Serve  a  Subpoena 

— Contempt, 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

A.  B.,  being  duly  swoin,  says:  That  he  is  the  attorney  for  de- 
fendant in  the  above-entitled  action.  That  C.  D.  is  the  sheriff  of 
said  county.  That  said  action  was  set  for  trial  on  June  3,  190 j, 
at  2  o'clock  P.  M.  That  on  June  i,  IQ03,  affiant  delivered  to 
said  sheriff  a  subpoena  issued  by  the  clerk  of  said  court  in  man- 
ner and  form,  and  signed  and  sealed  as  by  law  required,  com- 
manding him  to  subpoena  E.  F.  to  appear  as  a  witness  for  plain- 
tiff on  said  3d  day  of  Ju>ie,  as  aforesaid.  That  said  sheriff  will- 
fully neglected  to  serve  said  subpoena. 

Wherefore,  affiant  prays  for  an  order  citing  the  said  sheriff  to 
show  cause  why  he  should  not  be  punished  for  contempt,  because 
of  his  said  violation  of  his  duty  as  sheriff. 

(All  courts.) 


404  Nsw  Book  of  Forms. 

NOTE.— Calif omi a,  C.  C.  P.,  sec.  1209,  snbd.  3,  sec.  1212;  Alaska, 
Codes,  pt.  4,  c.  58.  sec.  609;  Idaho,  0.  C.  P.,  sees.  3819-3833;  Montana, 
C.  C.  P.,  sec.  2170;  Nevada,  Comp.  Laws,  see.  3.555;  North  Dakota,  C. 
C.  P.,  sec.  5934;  Oregon,  Codes  and  Statutes,  see.  662;  Utah,  Eev.  Stats., 
sec.  3358;  Washington,  Ballinger's  Codes,  sec.  4798. 

No.  581.— Affidavit— Attorney  Willfully  Neglecting  His  Duty 

— Contempt. 

[Title  of  Court  and  Cause.] 

State  of  Calif arnia, 
County  of  Butte, — ss. 

A.  B.,  being  duly  sworn,  says:  That  he  is  the  defendant  in  the 
above-entitled  action.  That  C.  D.  is  now,  and  was,  on  June  5, 
7905,  an  attorney  at  law,  admitted  to  practice  by  the  supreme 
court  of  the  state  of  California.  That  on  June  4,  1905,  affiant 
employed  said  C.  D.  to  defend  said  action;  and  thereupon  he 
drew  and  filed  defendant's  answer  in  said  action.  That  on  mo- 
tion of  plaintiff  and  in  conformity  with  law  and  the  rules  of  said 
court  said  action  was  set  for  trial  by  a  jury  on  December  10,  ipo§, 
at  10  o'clock  A.  M.  That  on  December  5,  1903,  said  C.  D.  noti- 
fied affiant  that  said  action  would  be  tried  on  the  day  set.  That 
on  said  December  loth,  at  10  o'clock  A.  M.,  affiant,  with  his  wit- 
nesses, appeared  in  court.  That  said  C.  D.  did  not  appear.  That 
the  plaintiff  caused  a  jury  to  be  impaneled,  introduced  his  evi- 
dence, and  such  proceedings  were  had  that  in  the  absence  of  said 
C.  D.,  who  did  not  appear  at  the  trial,  a  verdict  and  judgment 
were  entered  for  plaintiff. 

Wherefore  affiant  prays  for  an  order  citing  the  said  C.  D.  to 
show  cause  why  he  should  not  be  punished  for  contempt  because 
of  his  said  violation  of  his  duty  as  an  attorney. 

(All  courts.) 

NOTE. — Misbehavior  in  office,  or  other  willful  neglect  or  violation 
of  duty  by  an  attorney,  clerk,  sheriff,  coroner,  or  other  person  elected 
or  apj)ointed  to  perform  a  judicial  or  ministerial  office,  is  a  contempt: 
Cal.  C.  C.  P.,  sees.  1212,  1209,  subd.  3;  Alaska,  Codes,  pt.  4,  c.  58,  sec. 
609;  Idaho,  C.  C.  P.,  sec.  3819;  Montana,  C.  C,  sec.  2170;  Nevada,  Comp. 
Laws,  see.  3555;  North  Dakota,  C.  C.  P.,  sec.  5934;  Oregon,  Codes  and 
Statutes,  see.  G02;  Utah,  Rev.  Stats.,  sec.  3358;  Washington,  Ballinger'iS 
Codes,  sec.  4798. 

No.  582. — Affidavit — Refusal  to  Obey  Court's  Order. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Sierra, — ss. 

/.  B.,  being  duly  sworn,  says,  that  he  is,  and  was  during  all  the 
times  hereinafter  mentioned,  the  sheriff  of  said  county  of  Sierra, 


AFFroAViT.  405 

duly  elected  and  qualified;  that  on  the  third  day  of  May,  A.  D. 
1905,  J.  S.,  superior  judge  in  and  for  said  county,  duly  maile  an 
order  in  said  case  that  H.  S.  appear  before  him  on  the  tivcnty- 
sevcnth  day  of  April,  1905,  and  then  and  there  submit  himself  to 
examination  in  said  a-ction  in  proceedings  supplemental  to  execu- 
tion; which  order,  and  the  affidavit  on  which  said  order  was  based, 
are  herein  referred  to  and  made  a  part  hereof,  and  marked  Ex- 
hibits ''A"  and  "B" ;  that  in  obedience  to  said  order  the  said  H.  S. 
appeared  in  court  as  in  said  order  directed,  and  on  examination 
concerning  his  property,  testified  that  he  had  on  his  person  and 
imder  his  control,  a  gold  watch,  a  gold  ring,  and  fifty  cents  in 
money,  all  of  which  was  his  property.  Thereupon  the  said  court 
made  an  order  that  he  deliver  all  of  said  property  to  affiant,  as 
sheriff,  to  be  applied  toward  the  satisfaction  of  the  execution  in 
said  action  ;  that  petitioner  was  informed  of  said  order,  but  re- 
fused to  obey  it,  and  he  still  does  refuse  to  deliver  any  of  said 
property  to  affiant  to  be  applied  on  said  execution  as  aforesaid, 
although  said  property  is  in  his  possession.  Wherefore  affiant 
prays  that  the  said  H.  S.  may  be  arrested  and  punished  as  for  a 
contempt  of  this  court, 
(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec.  1209,  subd.  10;  Id.,  sera.  720,  721; 
Alaska,  Codes,  pt.  4,  c.  58,  sec.  609;  Arizona,  C.  C,  pars.  1430,  1723,  1724, 
2760,  2761;  Idaho,  C.  C.  P.,  sec.  3819;  Montana,  C.  C.  P.,  sec  2170;  Ne- 
vada, Comp.  Laws,  see.  3555;  North  Dakota,  C.  C.  P.,  sec.  5934;  Oregon, 
Codes  and  Statutes,  sec.  662;  Utah,  Kev.  Stats.,  sec.  3358;  Washington, 
Ballinger's  Codes,  sec.  4798. 

No.  583. — Affidavit  of  Attorney  or  Party  to  a  Pending  Action 
that  the  Action  is  Pending,  and  that  the  Testimony  of  Wit- 
ness Named  is  Necessary  (Contempt  Based  upon  It). 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

A.  B.  C,  being  drly  sworn,  says :  That  he  is  the  attorney  for 
plaintiff  in  an  action  now  pending  in  the  superior  court  of  said 
city  and  county,  entitled  F.  G.  v.  H.  G.  That  said  action  is  to 
recover  of  defendant  $3,527.^0  on  account  of  goods  sold  atid  de- 
livered  to  defendant.  That  said  D.  F.,  zvitness,  ordered  said  goods 
in  the  name  of  and  a^  the  agent  of  H.  G.,  defendant,  and  it  is  to 
prove  the  fact  of  said  agency,  order  and  delivery  that  the  deposit 
tion  of  said  D.  F.  is  to  be  taken.  That  D.  F.  is  a  resident  of  said 
city  and  county,  and  is  a  material  witness  for  plaintiff  in  said  ac- 
tion. 

Wherefore  plaintiff  requests  that  you  issue  a  subpoena  for  the 
attendance  of  said  D.  F.  before  you,  on  the  3d  day  of  May,  1905, 
for  the  purpose  of  having  his  deposition  taken. 

(An  courts.) 


405  New  Book  of  Forms. 

NOTE.— Califoniia.  C.  C.  P.,  see.  1986. 

jVffidavit  to  Obtain  Subpoena. — The  foregoing  forin  wns  not  drawn 
to  conform  to  a  statute,  but  to  give  a  notary  public  written  HU*^hority 
to  issue  a  subpoena  and  to  be  used  in  proceedings  to  punish  a  witness 
should  he  fail  to  appear.  There  is  always  some  danger  that  the  un- 
scrupulous may  cause  notaries  to  innocently  issue  process  for  the  pur- 
I'ose  of  annoyance;  but  if  an  affidavit  of  good  faith  is  exacted,  the  dan- 
ger of  such  oppression  will  be  greatly  lessened.  In  deciding  the  case  of 
Burns  v.  Superior  Court,  140  Cal.  1,  73  Pac.  597,  the  supreme  court  refers 
to  that  danger  and  suggests  that  if  charges  of  contempt  are  preferred 
agiiinst  contumacious  witnesses,  it  might  be  necessary  for  the  court  is- 
suing contempt  process  to  see  that  the  facts  showing  the  materiality  of 
the  testimonj'^  are  fully  and  particularly  set  forth  in  the  affidavit  before 
issuing  the  citation.  In  preparing  the  form  it  was  thought  that  it 
v.'ould  be  an  excellent  plan  to  proceed  as  herein  suggested.  It  is  thought 
that  this  method  will  dispense  with  the  full  statement  of  facts  sug- 
gested in  the  opinion  referred  to. 

No.  584. — Affidavit — Contempt  Committed. 

[Title  of  Court  and  Cause.] 

/.  B.,  being  duly  sworn,  says,  that  he  is  over  21  years  of  age. 

That  on  the  2d  dayoi  January,  190 j,  in  the  city  and  county  of 
San  fraiicisco,  state  of  California,  he  served  a  subpoena  on  D.  E., 
Esq.,  issued  by  /.  M.,  notary  public  in  and  for  the  city  and  county 
of  San  Francisco,  state  of  California,  on  the  part  of  plaintiff, 
commanding  the  said  D.  B.,  Esq.,  to  appear  at  the  oMce  of  said 
notary  public  in  the  Merchants'  Exclmnge  Building,  on  the  joE 
day  of  May,  ipoj,  at  the  hour  of  10  o'clock  A.  M.,  as  a  witness 
on  behalf  of  plaintiff;  that  the  said  D.  B.  did  not  demand  his  fees 
as  a  witness ;  that  when  the  said  D.  B.  was  served  as  aforesaid 
he  said  that  he  would  not  appear,  and  that  if  the  said  notary 
v.anted  him  he  might  send  a  carriage,  and  he  would  then  con- 
sider whether  he  would  obey  said  subpoena;  that  the  said  D.  B. 
has  not  obeyed  said  subpoena,  and  did  not  appear  as  a  witness 
this  day. 

Wherefore  affiant  prays  that  a  warrant  may  be  issued  for  the 
arrest  of  the  said  D.  E.,  and  that  he  may  be  dealt  with  as  provided 
by  law. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec.  1212. 

Affidavit  That  a  Contempt  Has  Been  Committed. — Tn  Burns  v.  Superior 
Court,  140  Cal.  1,  it  is  held  that  a  notary  public  has  authority  to  issue 
a  subpoena  for  a  witness  to  appear  before  him  and  give  his  deposition 
to  be  used  in  an  action  pending  in  a  state  court.  The  court  in  which 
the  action  is  pending  has  inherent  power  to  punish  the  witness  for 
contempt.  The  theory  is  that  a  refusal  to  permit  a  deposition  to  be 
taken  or  to  give  a  deposition  is  "obstructing"  the  business  of  the 
court  in  which  the  action  is  pending.  The  case  of  Levinsky  v.  Superior 
Court,  72  Cal.  510,  is  overruled  in  so  far  as  it  conflicts  with  the  ease 
of  Burns  v.  Superior  Court. 


Affidavit.  407 


No.  585. — Affidavit  for  Continuance, 

[Title  of  Court  and  Cause,] 

State  of  California, 

County  of  Sacramento, — ss. 

A.  B.,  being  duly  sworn,  says :  That  he  is  the  defendant  in  the 
above-entitled  action;  that  he  cannot  safely  go  to  trial  before 
ninety  days  from  the  date  hereof,  on  account  of  the  absence  of 
A.  L.  P.,  who  is  a  material  witness  for  defendant;  that  a  subpoena 
in  said  cause  was  duly  issued  on  the  ist  day  of  March,  igo&, 
and  placed  in  the  hands  of  A.  B.  for  service  on  the  same  day; 
that  on  the  second  day  of  said  month  of  March,  the  said  sub- 
poena was  by  said  constable  duly  served  on  the  said  A.  L.  P.,  in 
said  county;  that  said  subpoena  commanded  the  said  A.  L.  P.,  to 
be  present  in  this  court  at  the  hour  of  ten  o'clock  A.  M.  of  this 
day,  to  testify  on  behalf  of  defendant;  that  after  said  subpoena 
was  served  the  said  A.  L.  P.  was  taken  violently  sick  and  was  re- 
moved from  said  county,  and  is  now  at  Coronado  Beach  in  the 
county  of  San  Diego,  in  said  state,  and  is  too  sick  to  submit  to  ex- 
amination by  deposition;  that  the  evidence  of  the  said  A.  L.  P.  is 
material  for  defendant's  defense;  that  he  will  prove  by  said  wit- 
ness that  [here  state  the  facts  the  witness  will  testify  to].  And 
defendant  says  that  the  said  facts  cannot,  to  his  knowledge,  be 
proved  by  any  other  witness ;  and  that  the  application  is  not  made 
for  delay,  but  that  justice  may  be  done  in  the  premises,  and  aflfiant 
believes  that,  if  this  case  be  continued  for  three  months,  he  will  be 
able  to  have  said  witness  present  to  testify  as  aforesaid. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  59.5,  596;  Arizona,  C.  C^  pars  1383. 
13S4,  1386,  2076;  Idaho,  C.  C.  P.,  sec.  3457;  Montana,  C.  C.  P.,  see.  1593- 
Nevada,  Comp.  Laws,  see.  3255;  North  Dakota,  C.  C.  P.,  see.  5755a;  Ore- 
gon, Codes  and  Statutes,  sec.  115;  Utah,  Rev.  Stats.,  sec.  3133;  Washing- 
ton, Ballinger's  Codes,  sec.  4977;  "Wyoming,  Rev.  Stats.,  sec.  4279. 

No.  586. — Affidavit  to  Creditor's  Claim — Corporation  Partner- 
ship. 

[Title  of  Court  and  Estate.] 

State  of  California, 
County  of  Napa, — ss. 

/.  L.,  being  first  duly  sworn,  deposes  and  says :  That  [the  cor- 
poration or  partnership]  whose  foregoing  claim  is  herewith  pre- 
sented to  the  [executor  or  administrator  of  said  deceased,  is  a 
(A)  corporation  organized  under  the  laws  of  the  state  o«f' Cali- 
fornia, or  is  a  partnership,  etc.]  ;  that  affiant  is   (B)    [the  presi- 


4o8  New  Book  of  Forms. 

dent,  secretary,  or  a  member  of  said  partnership]  and  knows  of 
his  own  knowledge  all  the  facts  of  said  claim,  or  he  makes  this 
affidavit  on  behalf  of  said  /.  L.,  who  is  absent  from  the  state,  af- 
fiant knowing-  all  the  facts  of  said  claim  {or  any  other  good  rea- 
son] and  for  that  reason  he  makes  this  affidavit  on  behalf  of 
said  (C)  [corporation,  etc.].  That  the  amount  of  said  claim,  to 
wit,  the  sum  of  [one  thousand  dollars],  is  justly  due  to  the  said 
claimant,  that  no  payments  have  been  made  thereon  which  are  not 
credited,  and  that  there  are  no  offsets  to  the  same  to  the  knowl- 
edge of  said  affiant. 
(See  "Claims.") 

(A)  Firm  or  corporation  as  the  case  may  be;  insert  names  of  indi- 
viduals composing  copartnership;  if  a  corporation,  so  state,  giving  name 
af  state  in  which  same  was  organized. 

(B)  State  fully  capacity  in  which  affiant  acts.  If  a  member  of  a 
firm,  say  so;  if  a  managing  agent,  state  why  it  is  not  sworn  to  by  one  of 
the  principals;  if  an  officer  of  a  corporation,  state  what  officer;  if  an 
individual  claimant,  so  state. 

(C)  Firm  or  corporation. 

NOTE.— California,  C.  C.  P.,  sees.  1494-1,503;  Alaska,  Codes,  pt.  4, 
e.  84,  sec.  822;  Arizona,  C.  C,  par.  1743;  Idaho,  C.  C.  P.,  sec.  4137;  Mon- 
tana, C.  C.  P.,  sec.  2604;  Nevada,  Comp.  Laws,  sec.  2894;  North  Dakota, 
Probate  Code,  see.  3402;  Oregon.  Codes  and  Statutes,  sec.  1160;  South 
Dakota,  Probate  Code,  see.  171;  Utah,  Eev.  Stats.,  sees.  3852-3944;  Wash- 
ington, Ballinger's  Codes,  see.  6229;  Wyoming,  Rev.  Stats.,  sees.  4751- 
4758. 

No.  587. — Afifidavit  to  Creditor's  Claim. 

[Title  of  Court  and  Estate.] 

County  of  Butte, — ss. 
State  of  California, 

}.  B.,  being  duly  sworn,  says  that  he  is  the  /.  B.  in  the  afore- 
said claim  mentioned.  That  he  knows  the  contents  of  said  claim 
and  it  is  true.  That  the  amount  of  said  claim,  to  wit,  $10,000,  is 
Justly  due  claimant ;  that  no  judgments  have  been  made  thereon 
[which  are  not  credited]  :  and  there  are  no  offsets  to  the  same  to 
the  knowledge  of  said  affiant. 

(See  "Claims.") 

NOTE. — California,  C.  C.  P.,  sees.  1494,  1563;  Arizona,  C.  C,  par.  1743; 
Idaho,  C.  C.  P.,  see.  4137;  Montana,  C.  C.  P.,  sec.  2604;  Nevada,  Comp- 
liaws,  sec.  2894;  North  Dakota,  Probate  Code,  sec.  3402;  Oregon,  Codes 
and  Statutes,  sec.  1160;  South  Dakota,  Probate  Code,  see.  171;  Utah, 
Rev.  Stats.,  sees.  3852-3944;  Washington,  Ballinger's  Codes,  see.  6229; 
"Wyoming,  Eev.  Stats.,  sees.  4751-4758. 


AfTIDAVlT.  4C9 

No.  588. — Affidavit  that  Creditor  had  No  Notice,  etc 

[Title  of  Court  and  Estate.] 

State  of  California, 
County  of  Butte, — ss. 

J.  S.,  being  first  duly  sworn,  deposes  and  says :  That  he,  whose 
foregoing  claim  is  herewith  presented  to  the  executor  of  said 
deceased,  is  a  resident  of  the  city  of  Rochester,  state  of  New 
York;  or,  that  affiant  is.  That  he  had  no  notice  of  the  death  of 
said  deceased  until  more  than  one  year  from  the  date  of  the  first 
publication  of  notice  to  creditors  in  this  estate  by  reason  of  af- 
fiant being  all  said  time  of  publication  out  of  this  state  and  in  the 
state  of  New  York.  That  decree  of  distribution  has  not  been  en- 
tered in  said  estate,  and  for  that  reason  he  makes  this  affidavit. 
That  the  amount  of  said  claim,  to  wit,  the  sum  of  one  thousand 
dollars,  is  justly  due  to  the  said  claimant ;  that  no  payments  have 
been  made  thereon  which  are  not  credited  ;  and  that  there  are  no 
offsets  to  the  same  to  the  knowledge  of  said  affiant. 

NOTE.— California,  C.  C.  P.,  sec.  1493;  Idaho,  C.  C.  P.,  sees.  4136,  4137; 
Montana,  C.  C.  P.,  sec.  2603;  Nevada,  Comp.  Laws,  sec.  2893;  North 
Dakota,  Probate  Code,  see.  3401;  South  Dakota,  Probate  Code,  sec.  170; 
Utah,  Rev.  Stats.,  sec.  3851;  Wyoming,  Rev.  Stats,,  sees.  4751-4758. 

No.  589. — Affidavit — Attachment  to  Procure  Order  of  Exam- 
ination, 
[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

/.  C.  S.,  the  plaintiff  in  the  above-entitled  action,  being  duly 
sworn,  says,  that  an  attachment  Jias  been  issued  in  this  action, 
which  has  not  been  returned;  that  he  has  been  informed,  and  he 
believes,  and  therefore  avers,  that  one  H.  S.  has  in  his  possession 
and  under  his  control  the  following  described  property  belonging 
to  defendant  [description]  ;  and  garnishment  has  been  served  on 
the  said  H.  S.  in  manner  and  form  as  required  by  law. 

Wherefore,  he  prays  for  an  order  dTerting  the  snid  H.  S.  to 
appear  before  this  court  and  be  examined  under  oath  respecting 
the  same. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec.  545;  Alaska  Codes,  pt.  4,  e.  14,  se*. 
156;  Arizona,  C.  C,  pars.  2586,  2,587;  Idaho,  C.  C.  P.,  sec.  3302;  Montana, 
C.  C.  P.,  sec.  901;  Nevada,  Comp.  Laws,  sec.  3226;  North  Dakota,  C.  C. 
P.,  sec.  5366;  Oregon,  Codes  and  Statutes,  sec.  304;  South  Dakota,  C.  C. 
P.,  sec.  400;  Utah,  Rev.  Stats.,  sec.  3091;  Washington,  Ballinger's  Codes, 
sees.  5363-5392. 


4IO  New  Book  of  Forms. 

No.  590. — Affidavit — Order  for    Examination    of    Debtor    of 
Judgment  Debtor. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Napa, — ss. 

J.  S.,  being  duly  sworn,  says:  That  he  is  one  of  the  plaintiffs 
in  the  above-entitled  action ;  that  the  said  plaintiffs,  on  or  about 
the  nineteenth  day  of  August,  ipo^,  recovered  a  judgment  in  said 
action  in  the  superior  court  of  the  county  of  San  Joaquin,  state 
of  California,  against  the  defendants  in  said  action,  for  eight 
hundred  dollars  or  thereabouts,  for  damages  and  costs,  which 
judgment  was  duly  entered  and  docketed  in  the  office  of  the  clerk 
of  said  court,  in  said  county  of  San  Joaquin;  that  an  execution 
against  the  property  of  the  said  defendants  was  duly  issued  there- 
upon, and  delivered  to  the  sheriff  of  said  county  of  San  Joaquin, 
being  the  county  where  said  defendants  then  and  still  reside,  and 
in  which  the  judgment-roll  in  said  action  is  filed,  to  be  executed 
according  to  law ;  that  said  execution  has  been  duly  returned  by 
said  sheriff',  and  filed  in  the  office  of  the  clerk  of  said  court  zvholly 
unsatisfied  and  unpaid;  and  that  the  said  judgment  still  remains 
in  full  force  and  effect,  wholly  unsatisfied,  and  not  reversed,  va- 
cated, or  set  aside  or  appealed  from. 

That  as  affiant  is  informed  and  verily  believes,  /.  H.  has  prop- 
erty belonging  to  said  judgment  debtors,  exceeding  in  value  tzvo 
hundred  and  fifty  dollars,  which  he  unjustly  refuses  to  apply 
toward  the  satisfaction  of  the  said  judgment,  and  is  indebted  to 
the  said  judgment  debtors  in  an  amount  exceeding  fifty  dollars, 
and  resides  in  said  county. 

(All  courts.) 

NOTE. — California,  C.  C.  P.,  sees.  714-721;  Alaska,  Codes,  pt.  4,  c. 
31,  sec.  295;  Arizona,  C.  C,  pars.  2.586,  2587;  Idaho,  C.  C.  P.,  sees.  3562, 
3563;  Montana,  C.  C.  P.,  sees.  1261,  1272;  Nevada,  Comp.  Laws,  sees. 
3335,  3336;  North  Dakota,  C.  C.  P.,  sec.  5564;  Oregon,  Codes  and  Stat- 
utes, sees.  254-259;  South  Dakota,  C.  C.  P.,  sees.  400,  403;  Utah,  Rev. 
Stats.,  see.  3273;  Washington,  Ballinger's  Codes,  sec.  5392;  Wyoming, 
Rev.  Stats.,  sees.  3940-3948. 

No.  591. — Affidavit  for  Examination  of  Judgement  Debtor. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

/.  H.  P.  G.,  being  duly  sworn,  says:  That  he  is  the  plaintiff 
in  the  above-entitled  action ;  that  the  said  plaintiff,  on  or  about 


Affidavit.  41  r 

the  nineteenth  day  of  April,  recovered  a  judgment  in  said  action 
in  the  superior  court  of  the  city  and  county  of  San  Francisco, 
against  the  defendant  in  said  action,  for  four  thousand  and  tivcnty- 
Hi'e  dollars,  United  States  gold  coin,  or  thereabouts,  and  for  dam- 
ages and  costs,  which  judgment  was  duly  entered  and  docketed 
in  the  ofiice  of  the  clerk  of  said  court,  in  the  said  city  and  countv 
of  San  Francisco,  being  the  county  where  the  said  defendant  then 
resided,  and  in  which  the  judgment-roll  in  said  action  is  filed,  to 
be  executed  according  to  law. 

That  the  said  judgment  still  remains  in  full  force  and  effect, 
wholly  unsatisfied,  and  not  reversed,  vacated,  or  set  aside;  that  on 
the  twenty-third  day  of  April,  IQ05,  an  execution  upon  said  judg- 
ment was  issued  to  the  sherifif  of  said  city  and  county,  and  said 
execution  has  been  returned  unsatisfied. 

That  as  affiant  is  informed,  and  verily  believes,  the  said  defend- 
ant now  resides  in  said  city  and  county,  and  has  property  which 
he  unjustly  refuses  to  apply  toward  the  payment  or  satisfaction 
of  the  said  judgment. 

NOTE.— California,  C.  C.  P.,  sees.  714-721;  Arizona,  C.  C,  par  2586 
2587;  Idaho,  C.  C.  P.,  sees.  3562,  3563;  Montana,  C.  C.  P.,  sees  1261-2172' 
Nevada,  Comp.  Laws,  sees.  3335,  3336;  North  Dakota,  C.  C.  P^  see  5564- 
Oregon,  Codes  and  Statutes,  sees.  254-259;  South  Dakota,  C.  C  P  sec' 
400;  Utah,  Rev.  Stats.,  sec.  3273;  Washington,  Ballinger's  Codea,'  sec' 
5392;  Wyoming,  Rev.  Stats.,  sees.  3940-3948, 

No.  592.— Affidavit— Time  to  be  Shortened  for  Notice  to  Take 

Deposition. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Sacramento, — ss. 

A.  B.,  being  duly  sworn,  deposes  and  says: 

I.  I  am  the  plaintiff  in  the  above-entitled  action. 

II.  The  summons  in  said  action  has  been  served.  P.  Q.  is 
0  witness  material  and  rvecessary  for  me  on  the  trial  of  said  action 
without  the  benefit  of  whose  testimony  I  cannot  safely  proceed  to 
trial;  said  witness  resides  in  tlu:  county  of  Mariposa,  and  is  about 
to  leave  said  county  where  said  action  is  pending  and  is  to  be  tried, 
and  will  probably  continue  absent  when  his  testimony  is  reciuired 
[or  state  other  facts  showing  that  the  case  is  within  the  statute]  ; 
or  said  witness  is  too  infirm  to  attend  the  tried;  or  said  testimonv 
will  be  required  upon  a'  motion  [stating  it]  ;  or  said  ztntness  is  the 
only  one,  a  fact  material  to  the  issue  [stating  what  the  fact  is]. 

III.  I  am  informed  and  believe  that  it  is  the  intention  of  said 
witness  to  depart  from  said  county  on  the  tenth  dav  of  August. 
1905.     I  was  not  aware  of  his  intended  departi:re  in  time  to  give 


412  New  Book  of*  Forms. 

Hvc  days'  notice  of  the  time  and  place  of  taking  his  deposition; 
and  the  attorneys  for  the  said  defendant  reside  at  Grass  Flat,  in 
said  county. 
(All   courts.) 

NOTE.— California,  C.  C.  P.,  sees.  1005,  1054,  2031,  2038;  Ala.ska, 
Codes,  pt.  4,  c.  63,  sees.  652-658;  Arizona,  C.  C,  pars.  1906-2510;  Idaho, 
C.  C.  P.,  see.  3744;  Montana,  C.  C.  P.,  see.  1897;  Nevada,  Comp.  Laws, 
sees.  3586-3594,  as  to  notices  generally;  North  Dakota,  C.  C.  P.,  sec. 
5300;  Oregon,  Codes  and  Statutes,  sec.  835;  Utah,  Bev.  Stats.,  sees.  3325- 
3456. 

No,  593. — Affidavit — Executor's  Bond  Insufficient. 

[Title  of  Court  and  Estate.] 

State  of  California, 
County  of  Yuba, — ss. 

A.  B.,  being  sworn,  says :  That  he  is  a  creditor  of  the  above- 
entitled  estate.  That  his  claim  has  been  presented  to  the  adminis- 
trator of  said  estate ;  has  been  approved  by  him,  and  also  by  the 
judge  of  said  court,  and  is  on  file  as  an  approved  claim,  and  no 
part  of  it  has  been  paid.  That  affiant  has  been  informed  that  C 
P.,  one  of  the  sureties  on  the  bond  of  said  administrator,  is  insol- 
vent, and  upon  said  inforniation  he  made  diligent  investigations 
and  he  believes  that  said  C.  P.  is  insolvent. 

NOTE. — The  above  affidavit  need  not  be  in  a  positive  form  or  in  any 
form  approaching  positiveness;  because  a  judge  may  "of  his  own  mo- 
tion" issue  a  citation  for  the  administrator  to  appear  and  answer.  It 
is  intended  that  the  information  under  which  the  judge  moves  must 
come  from  an  interested  person  or  of  his  own  motion  founded  upon  his 
own  observ^ation  or  hearsay.  If  the  facts  are  as  he  is  led  to  believe, 
he  must  order  further  security.  The  foregoing  remarks  apply  to  all 
bonds  filed  in  probate  cases:  Cal.  C.  C.  P.,  sec.  1394;  Alaska,  Codes,  pt. 
4,  c.  81,  sec.  785;  Arizona,  C.  C,  par.  1681;  Idaho,  C.  C.  P.,  sees.  4068, 
4072;  Montana,  C.  C.  P.,  see.  2480;  Nevada,  Comp.  Laws,  sec.  2840; 
North  Dakota,  Probate  Code,  sec.  6360;  Oregon,  Codes  and  Statutes,  820, 
1123;  South  Dakota,  Probate  Code,  sees.  113,  119;  Utah,  Rev.  Stats., 
sec.  3832;  Washington,  Ballinger's  Codes,  see.  6153;  "Wyoming,  Eev. 
Stats.,  sees.  4663,  4064,  4670,  4671,  4679. 

No.  594. — Affidavit  for  Order  Shortening  or  Elxtending  Time 
for  Examination  of  Witness. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Prancisco, — ss. 

J.  D.,  being  duly  sworn,  says  that  he  is  one  of  the  plaintiffs 
in  the  above-entitled  action ;  that  the  summons  in  said  action  has 


Affidavit.  413 

been  senrd;  that  TV.  B.  is  a  witness  mnterial  and  necessary  for 
the  said  plaintiff  on  the  trial  of  said  action ;  that  said  zvitness  re- 
sides in  the  county  of  Placer  and  is  about  to  leave  the  said  county 
of  Placer  and  remove  to  the  territory  of  Arizona,  and  lie  ivill  con- 
tinue absent  from  this  state  when  this  case  comes  on  for  trial; 
and  affiant  liad  no  knowledge  or  information  of  his  intended  de- 
parture from  this  staie  until  this  day.  The  said  witness  intends 
to  start  for  the  said  territory  on  the  fifteenth  day  of  this  month; 
that  affiant  was  not  aware  of  the  said  intended  departure  in  time 
to  give  five  days'  notice  of  the  time  and  place  of  taking  his,  said 
witjwss'  deposition;  and  that  the  attorney  for  the  said  defendant 
resides  at  the  city  and  county  of  San  Francisco;  [or  that  the  zvit- 
ness resides  out  of  the  county;  or  that  he  is  too  iniirm  to  attend 
the  trial;  or  his  testimony  is  required  upon  a  motion  stating  what 
it  is;  or  that  the  witness  is  the  only  0Hr€  who  can  establish  mate- 
rial facts,  stating  ivliat  they  are]. 
(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  1005,  1054,  2031.  2038;  Alaska, 
Codes,  pt.  4,  e.  63,  see.  652;  Arizona,  C.  C,  pars.  1906.  2506,  2510;  Idaho, 
C.  C.  P.,  sec.  3744;  Montana,  C.  C.  P.,  see.  3360  (in  the  state);  Nevada] 
Comp.  Laws,  sec.  3503;  North  Dakota,  C,  C.  P.,  sees.  5298,  5722-  Utah! 
Rev.   Stats.,   sees.    3325,   3456. 

No.     595. — Affidavit — Deposition — Commission    to     Examine 

Witness. 
[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

/.  D.,  the  plaintiff  in  the  above-entitled  action,  being  duly 
sworn,  says :  That  the  summons  in  the  said  action  has  been  served, 
and  the  defendant  has  appeared  [or  a  question  of  fact  has  arisen 
in  this  proceeding],  and  that  W.  C.  is  a  witness  material  and 
necessary  for  the  said  plaintiff  on  the  trial  of  the  said  action; 
that  said  witness  resides  in  the  city  of  New  York,  in  the  county 
of  Neiv  York,  in  the  state  of  New  York,  and  is  out  of  this  state, 
and  will  continue  absent  when  his  testimony  is  required. 

(All  courts.) 

NOTE. — The  testimony  of  a  witness  out  of  the  state  may  be  taken 
by  deposition,  in  an  action,  at  any  time  after  the  service  of  the  sum- 
mons or  the  appearance  of  the  defendant;  and,  in  a  special  proceeding, 
at  any  time  after  the  question  of  fact  has  arisen  therein:  Cal.  C.  C.  pj 
Bees.  2020,  2021.  The  same  form  in  California,  in  justice's  court,  but 
under  different  re<rulations  in  taking  a  deposition.  The  afSdavit  in 
California  is  unnecessary  except  under  a  rule  of  court.  The  same  rule 
usually  elsewhere:  Alaska.  Codes,  pt.  4,  c.  61,  sees.  645-651;  Arizona, 
C.  C,  pars.  2506-2526;  Idaho,  C.  C.  P.,  sec.  2524;  Montana.  C.  C.  P.,  sec. 
3340;  Nevada.  Conip.  Laws,  sees.  3504,  3507;  North  Dakota,  C.  C.  P_ 
sec.  5671;  Utah,  Rev.  Stats.,  sec.  3450. 


414  New  Book  of  Forms, 

No.  596. — Affidavit — General. 

State  of  California, 
County  of  Nevada, — ss. 

]V.  J.,  being  duly  sworn,  says:  That  on  the  iirst  day  of  July, 
1906,  I  resided  at  Grass  Valley,  in  said  county;  that  at  the  time 
last  aforesaid  W.  H.  P.  was  a  resident  of  the  same  place.  I  was 
well  acquainted  with  the  said  P.  until  his  death,  which  occurred 
on  the  day  aforesaid.  Previous  to  this,  the  said  P.  informed  me 
that  he  was  the  only  son  of  H.  P.  P.,  of  Rochester,  state  of  New 
York.  At  the  time  of  his  death  he  was  about  forty  years  old. 
He  had  light  liair  and  blue  eyes.  He  weighed  about  one  hundred 
and  eighty  pounds.  I  am  ready  to  testify  to  the  foregoing  mat- 
ters at  any  time  when  called  upon  to  do  so.  My  age  is  severUy- 
three,  and  I  reside  at  Red  Dog,  in  said  county. 

NOTE. — This  is  the  usual  form  of  affidavits  given  by  persons  know- 
ing certain  facts,  for  the  use  of  those  -who  contemplate  legal  proceed- 
ings, or  who  desire  the  information  for  other  purposes. 

jsjo.     597- — AfEdavit — Infant    is    Imperiled — Appointment    of 

Guardian. 

[Title  of  Court  and  Estate.] 

State  of  California, 
Cotmty  of  Alameda, — ss. 

A.  B.,  being  duly  sworn,  says :  That  he  has  petitioned  the  above- 
entitled  court  to  be  appointed  guardian  of  the  person  and  estate 
of  M.  C.  B.,  a  minor  orphan  child  of  C.  B.  L.,  deceased.  That 
notice  has  been  given  as  ordered  by  said  court  to  A.  B.  L.,  the 
person  havng  the  care  of  said  minor,  and  to  all  relatives  of  said 
minor  residing  in  said  county.  That  the  hearing  of  said  applica- 
tion has  been  set  before  said  court  for  Monday,  June  5,  ipod. 
That  affiant  is  an  uncle  of  said  minor,  and  is  interested  in  her 
welfare.  That  she  is  fourteen  years  of  age,  and  affiiant  believes 
that  she  will  be  imperiled  if  permitted  to  remain  with  the  person 
having  the  care  of  her.  That  said  person  is  A.  B.  L.,  the  widow 
of  said  C.  B.  L.,  and  said  minor's  stepmother.  She,  said  A.  B. 
L.,  is  addicted  to  excessive  use  of  intoxicating  liquors,  and  she 
frequents  places  where  racing  bets  are  made  when  she  is  intoxi- 
cated, and  affiant  has  since  and  before  the  death  of  her  said  hus- 
band seen  said  minor  in  her  company  at  such  resorts.  She,  the 
said  A.  B.  L.,  also  smokes  cigarettes  and  chews  tobacco,  and  is 
altogether  out  of  order  with  good,  clean  people. 

Wherefore,  affiant  asks  the  court  to  make  an  order  providing 
for  the  temporary  custody  of  said  minor  until  a  hearing  can  be 
had  on  si^ch  petition. 


Affidavit  415 

NOTE. — The  "peril"  need  not  be  as  imminent  as  imagined  in  the 
form  to  move  a  court  to  rescue  a  minor  who  is  in  danger.  The  court 
has  power,  under  the  impulse  of  convincing  facts,  to  grant  the  prayer 
of  the  affidavit.  The  aiiplication  may  be  by  verified  petition  or  by 
affidavit.  The  court  would  make  the  order  requested  in  the  absence 
of  any  praver:  Cal.  C.  C.  P.,  sec.  1747;  Alaska,  Codes,  pt.  4,  c.  88,  sees. 
887-9i7;  Arizona,  C.  C,  pars.  1945-1984;  Idaho,  C.  C.  P.,  sec.  4353  (Idaho 
is  minus  a  statute  expressly  relating  to  such  emergencies,  but  under 
section  3042,  (.^ode  of  (.'ivil  Procedure,  such  orders  may  be  made.  In 
any  event  they  will  be  good  until  the  guardian  is  appointed  in  the 
regular  manner);  jMoutana,  C.  C.  P.,  sec.  2950;  Nevada,  Corap.  Laws, 
pees.  566-509,  591;  North  Dakota,  Probate  Code,  sees.  6537-6587;  Oregon, 
Codes  and  Statutes,  sees.  5258-5290;  South  Dakota,  Probate  Code,  sees. 
366-435;  Utah,  Kev.  Stats.,  sec.  82.  When  jurisdiction  is  given  the 
means  to  apply  it  is  always  implied:  Id.,  sec.  720. 


No.  598. — Affidavit — Guardian    Refuses  to    Properly    Support 

Ward, 

[Title  of  Court  and  Estate.] 

State  of  California, 
County  of  Napa, — ss. 

A.  B.,  being  sworn,  says :  That  C.  D.  is  the  appointed,  qualified 
and  acting  guardian  of  the  person  and  estate  of  A.  M.,  the  minor 
son  of  C.  B.,  deceased.  That  he  was  appointed  by  the  said  su- 
perior court  of  the  county  of  Napa  on  June  5,  1905.  That  said 
minor  is  possessed  of  an  estate  which  nets  him  $100  a  month ;  that 
affiant  is  an  uncle  of  said  minor,  and  is  interested  in  his  welfare. 
That  said  minor  is  sixteen  years  of  age,  strong  and  healthy,  and 
mentally  sound,  also  gentle,  obedient  and  affectionate.  That  said 
guardian  has  been  requested  by  petitioner  and  other  relations  to 
send  his  ward  to  the  public  schools,  but  he  refuses  to  do  so,  but 
attempts  to  educate  him  at  home,  he,  the  said  guardian,  being  the 
only  teacher  he  has  had  since  letters  of  guardianship  were  issued 
to  said  guardian.  That  he,  the  said  guardian,  is  doing  what  he 
thinks  is  the  proper  thing  to  do.  but  he  is  himself  uneducated,  and 
unusually  ignorant  of  arithmetic,  grammar,  writing  and  spelling. 

Wherefore,  affiant  requests  the  court  to  cite  the  said  guardian 
to  appear  and  show  cause  why  said  minor  is  not  sent  to  the  public 
schools  [or  li'hy  he  should  not  be  removed]. 

NOTE. — Whenever  a  guardian  fails,  neglects  or  refuses  to  furnish 
suitable  and  necessary  mainten.Tnce,  support  or  education  for  his  ward, 
the  court  may  order  him  to  do  so,  and  may  enforce  said  order  by  proper 
process:  Cal.,  C.  C.  P.,  sec.  1771;  Alaska,  Codes,  pt.  4,  c.  8S,  sees.  SS7- 
917;  Arizona,  C.  C,  par.  1091;  Idaho,  C.  C.  P.,  sec.  4394;  Montana.  C. 
C.  P.,  sees.  2958,  2983;  Nevada.  Corap.  Laws,  sees.  569-591;  North 
Dakota,  Probate  Code,  sees.  6537-6587;  Oregon,  Codes  and  Statutes, 
tees.  5258-5200;  South  Dakota,  Probate  Code,  sees.  366-435;  Utah,  Rev. 
Stats.,  sees.  1962,  1963,  4003,  4005,  4007;  Wa.shington,  Ballinger'a  Codes, 
fcc.  64U7. 


4i6  •        New  Book  of  Forms. 


No.  599. — Af&davit  of  Administrator — Inventory  and  Appraise- 
ment. 
[Title  of  Court  and  Estate.] 

State  of  California, 
County  of  Butte, — ss. 

M.  J.,  the  ckiministratrix  of  the  estate  of  T.  J.,  deceased,  being 
duly  sworn,  says  that  the  annexed  inventory  contains  a  true  state- 
ment of  all  the  estate  of  the  said  deceased  which  has  come  to  the 
knowledge  and  possession  of  said  administratrix,  and  particularly 
of  all  moneys  belonging  to  the  said  deceased,  and  of  all  just 
claims  of  tlie  said  deceased  against  the  said  administratrix. 

[Attached  to  inventory.] 


No.  600. — Affidavit   of   Appraisers — Inventory    and  Appraise- 
ment. 
[Title  of  Court  and  Estate.] 

State  of  California, 
County  of  Butte, — ss. 

F.  H.,  E.  B.  and  W.  L.  C,  duly  appointed  appraisers  of  the  es- 
tate of  T.  J.,  deceased,  being  duly  sworn,  each  for  himself,  says, 
that  he  will  truly,  honestly,  and  impartially  appraise  the  property 
of  said  estate  which  shall  be  exhibited  to  him,  according  to  the 
best  of  his  knowledge  and  abihty. 

[Attached  to  inventory.] 


No.  601. — Affidavit  of  Appraisers  to  Their  Bill  for  Services. 

State  of  California, 
County  of  Butte, — ss. 

F.  H.,  E.  B.  and  W.  L.  C,  the  appraisers  above  named,  being 
duly  sworn,  each  for  himself,  says,  that  the  foregoing  bill  of  items 
is  correct  and  just,  and  that  tlie  services  have  been  duly  rendered 
as  therein  set  forth. 

[Attached  to  inventory.] 


Affidavit.  417 


No.  602. — Affidavit — Service  of  Notice  of  Petition  for  Probate 

of  WilL 
[Title  of  Court  and  Estate.] 

State  of  California, 
County  of  Butte, — ss. 

A.  B.,  being  sworn,  says  that  he  is  over  the  age  of  twenty-two 
years,  and  competent  to  be  a  witness  in  said  estate  proceeding's. 
That  on  the  ^th  day  of  May,  ipo6,  he  served  notice  of  the  time 
and  place  appointed  for  the  hearing  of  the  petition  for  the  probate 
of  the  will  of  said  deceased  filed  in  said  estate,  upon  A.,  B.,  C, 
D.  and  £.,  the  heirs  of  said  testator,  residents  of  the  said  state  at 
tlieir  places  of  residence  [stating  the  place  where  directed  as  ap- 
pears in  the  petition],  and  deposited  copies  of  the  said  notices 
in  sealed  envelopes  in  the  postoffice  of  city  and  county  directed 
severally  to  each  of  said  heirs  at  their  said  residences  with  the 
postage  paid  on  each  letter,  on  April  20,  ipo6. 

A  copy  of  said  notice  is  hereto  attached  and  made  part  hereof. 

NOTE. — In  California  copies  of  the  notice  of  the  time  appointed  for 
the  probate  of  the  will  must  be  addressed  to  the  heirs  of  the  testator 
resident  in  the  state,  at  their  places  of  residence,  if  known  to  the  peti- 
tioner, and  deposited  in  the  postoffice,  with  the  postage  thereon  pre- 
paid, at  least  ten  days  before  the  hearing.  If  their  places  of  resi- 
dence be  not  known,  the  copies  of  notice  may  be  addressed  to  them, 
and  deposited  in  the  postoffice  at  the  county  scat  of  the  county  where 
the  proceedings  are  pending.  A  copy  of  the  same  notice  must  in  like 
manner  be  mailed  to  the  person  named  as  executor,  if  he  be  not  the 
petitioner;  also,  to  any  person  named  as  coexecutor  not  petitioning, 
if  their  places  of  residence  be  known.  [Proof  of  maOing  the  copies 
of  the  notice  must  be  made  at  the  hearing.  Personal  service  of  copies 
of  the  notice  at  least  ten  days  before  the  day  of  hearing  is  equivalent 
to  mailing.]  California,  C.  C.  P.,  see.  1304;  Arizona,  C.  C,  pars.  1605, 
1606;  Idaho,  C.  C.  P.,  sec.  4001;  Montana,  C.  C.  P.,  sec.  232.5;  Nevada, 
Gomp.  Laws,  sec.  2795;  South  Dakota,  Probate  Code,  sees.  39,  40;  Utah, 
Rev.  Stats.,  sees.  3789,  3442;  Washington,  BaUinger's  Codes,  sees.  6081- 
6083. 

No.  603. — Affidavit  (Oath)  of  Executor  or  Administrator. 
[Title  of  Court  and  Estate.] 

I,  A.  B.,  do  solemnly  swear  that  I  will  perform,  according  to 
law,  the  duties  of  [administrator  or  executor]  of  the  will  [or  es- 
tate of]  C.  D.,  deceased. 

NOTE.— California,  C.  C.  P.,  sec.  1383.     The  "oath"  (affidavit)   must 

be   attached   to    the   letters.     As   far   as   a   "time    limit"    put    upon    the 

writer  of  this  note    would  permit,   examination   of   the   legal   authorities 

of  many  states  shows  there   ia   only   one   place   where   an   administrator 

New  Forms — 27 


4i8  New  Book  of  Forms. 

or  executor  is  required  to  add  to  the  forejifninsj  affidavit  the  words 
"That  he  will  support  the  constitution  of  the  United  States  and  the 
constitution  of  the  state  of  California,"  and  that  place  is  the  probate 
department  of  the  superior  court  of  the  city  and  county  of  San  Fran- 
cisco, state  of  California.  No  reason  is  given  for  the  use  of  those 
superfluous  words  except  that  the  municipal  printer  uses  an  ancient 
Btereotypcd  form  in  which  they  are  cast:  Arizona,  C.  C,  par.  1666;  Idaho, 
C.  C.  P.,  sec.  4061;  Montana,  C.  C.  P.,  sec.  2470;  Nevada,  Comp.  Laws, 
Bee.  2839;  North  Dakota,  Probate  Code,  sec.  6347;  South  Dakota,  Pro- 
bate Code,  sees.  99,  100;  Utah,  Eev.  Stats.,  sec.  3826;  "Washington,  Bal- 
linger's  Codes,  sec.  6146. 

No.  604. — Affidavit  of  Publication  of  Notice — Sale  of  Real  Es- 
tate. 
[Title  of  Court  and  Estate.] 

SCHEDULE  "B"— PART  OF  FORM  NO.  1526,  P.  904. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

C.  W.  C,  of  said  city  and  county,  being  duly  sworn  says,  that 
he  is  over  the  age  of  eighteen  years,  not  interested  in  or  a  party 
to  the  estate  of  T.  /.,  deceased. 

That  he  is  the  principal  clerk  and  bookkeeper  in  the  office  of 
the  publishers  of  the  D.  E.  B.,  a  newspaper  printed  and  published 
in  said  city  and  county,  and  as  such  clerk  and  bookkeeper  has 
charge  of  all  advertisements  in  said  newspaper. 

That  a  true,  full,  and  correct  copy  of  the  annexed  notice  of 
the  time  and  place  of  holding  the  sale  of  real  estate  ordered  by 
the  superior  court  of  the  city  and  county  of  San  Francisco,  in  the 
matter  of  said  estate,  on  the  seventh  day  of  December,  1905,  was 
published  in  said  newspaper  for  three  weeks  successively  next  be- 
fore the  day  of  sale  mentioned  in  said  notice  and  as  often  dur- 
ing the  period  of  said  three  successive  weeks  as  the  said  paper 
was  regularly  issued,  to  wit:  daily  from  the  eighth  day  of  De- 
cember, ipo^,  to  and  until  the  fourth  day  of  January,  ipo6,  both 
days  inclusive. 

(See  "Return.") 

No.  605. — Affidavit  of  Sale  of  Real  Estate. 
[Title  of  Court  and  Estate.] 

SCHEDULE  "C"— PART  OF  FORM  NO.  1526. 

State  of    California, 

City  and  County  of  San  Francisco, — ss. 

S.  P.  M.,  of  said  city  and  county,  being  duly  sworn,  says,  that 
he  is  an  auctioneer,  duly  authorized  by  law  to  sell  real  and  per- 
sonal property  at  public  auction  or  vendue,  residing  and  doing 


Affidavit.  419 

business  in  said  city  and  county,  and  mentioned  in  the  annexed 
notice ;  that  at  the  time  and  place  specified  in  said  notice,  to  wit, 
on  Monday,  the  fourth  day  of  January,  190^,  at  twelve  o'clock, 
M.,  and  at  the  auction  salesrooms  of  said  auctioneer,  at  314 
Montgomery  street,  in  said  city  and  county,  at  the  instance  and 
by  the  direction  of  M.  J.,  the  administratrix  of  the  estate  of  T.  J., 
deceased,  said  auctioneer,  for  and  on  behalf  of  said  estate,  offered 
for  sale  in  one  parcel,  to  the  highest  bidder,  upon  the  following 
terms,  to  wit,  for  cash,  subject  to  confirmation  by  the  superior 
court  of  the  city  and  county  of  San  Francisco,  the  real  estate 
described  in  said  notice,  and  sold  the  same  to  S.  W.,  for  the  sum 
of  three  thousand  and  one  hundred  dollars,  he  being  the  highest 
and  best  bidder  for  the  same,  and  that  being  the  highest  and 
best  sum  bid ;  that  the  said  sale  tvas  legally  made  and  fairly  con- 
ducted ;  that  the  sum  bid  is  not  disproportionate  to  the  value  of 
the  property  sold,  and  that,  as  this  affiant  believes,  a  sum  exceed- 
ing such  bid  at  least  ten  per  cent,  exclusive  of  the  expenses  of  a 
new  sale,  cannot  be  obtained. 
(See  'TRetum.") 

No.  606. — Affidavit  of  Sale  of  Real  Estate. 
[Title  of  Court  and  Estate.] 

SCHEDULE  "D"— PART  OF  FORM  NO.  1526,  P.  904. 

State  of  California, 
County  of  Alameda, — ss. 

Account  of  sales  of  real  estate  belonging  to  the  estate  of  T.  /., 
deceased,  made  by  S.  P.  M.,  auctioneer,  at  his  auction  salesrooms, 
^14  Montgomery  street,  on  the  fourth  day  of  Januar\,  igo6,  at 
twelve  o'clock  M.,  at  the  instance  and  by  the  direction  of  M.  J., 
the  administratrix  of  the  estate  of  T.  J.,  said  deceased,  who  be- 
ing duly  sworn,  says :  That  the  following  statement  is  true : 

Description.  Name  of  Purchaser.  Sum  Bid. 

S.  IV $3,100  00 

$3,100  00 

CHARGES. 

Adz^ertising  in  Report $2^  00 

Posting  notices -50 

Commissions,  as  per  agreement 75  00 

102  50 


Net  Proceeds i $2,997 


50 


420  New  Book  of  Forms. 


No.  607, — Affidavit  of  Principal  Clerk — Publication  of  Notice 
of  Sale  of  Personal  Estate — Schedule. 

[Title  of  Court  and  Estate.] 

SCHEDULE  "B"— PART  OF  FORM  NO.  1527,  P.  906. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

C.  B.,  of  said  city  and  county,  being  duly  sworn,  says :  That 
he  is  over  the  age  of  eighteen  years ;  not  interested  in  the  estate 
of  T.  J.,  deceased,  and  is  not  a  party  thereto. 

That  he  is  the  principal  clerk  and.  bookkeeper  in  the  office  of  the 
publisher  of  the  D.  Press,  a  nezvspaper  published  in  said  city  and 
county,  and  as  stuh  clerk  and  bookkeeper  has  charge  of  all  ad- 
vertisements in  said  nezvspaper.  That  a  notice,  of  which  the 
annexed  is  a  true  copy  (insert  copy),  was  published  in  said  news- 
paper for  at  least  ten  days,  and  as  often  during  the  period  of  said 
ten  days  as  said  nezvspaper  was  regularly  issued,  to  wit,  daily, 
Sundays  excepted,  from  the  fourteenth  day  of  August,  igo6,  to 
and  until  the  twenty-fifth  day  of  August,  igo6,  (both  days  in- 
clusive) [or,  if  the  affidavit  is  of  posting,  then,  omitting  the  words 
within  the  last  brackets,  say:]  That  a  notice,  of  zvhich  the  annexed 
is  a  true  copy,  was  posted  by  him  on  the  fourteenth  day  of  Aug- 
ust, ipo6,  in  three  public  places  in  said  city  and  county,  to  wit, 
one  at  the  United  States  PostofHce,  one  at  the  Hall  of  Justice,  and 
on£  at  the  aucti^on  salesrooms  of  J.  M.  &  S.,  in  said  city  and 
county  (or  at  whatever  places  notice  was  posted). 

(See  "Return.") 

No.  608. — Affidavit  of  Auctioneer  or  Return  of  Sale  of  Personal 

Estate. 

[Title  of  Court  and  Estate.] 

SCHEDULE  "C"— PART  OF  FORM  NO.  1527,  P.  906. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

/.  M.,  of  said  city  and  county,  being  duly  sworn,  says:  That  he 
is  a  member  of  the  firm  of  J.  M.  &  S.,  auctioneers  in  said  city  and 
county;  that  the  property  mentioned  in  the  annexed  notice  was 
sold  by  said  auctioneers  to  the  highest  bidders,  for  cash,  at  the 
place  mentioned  in  said  notice,  on  the  tzventy -fifth  day  of  August, 
igo6,  the  sales  commencing  at  twelve  o'clock  M. 


Affidavit.  42 1 

That  all  of  said  property  was  present  at  the  time  of  selling ; 
that  the  said  sales  were  legally  made  and  fairly  conducted,  and 
thpt  the  sinns  bid  were  not  disproportionate  to  the  value  of  the 
property  sold. 

That  the  account  of  sales  attached  to  this  affidavit  is  true  and 
correct. 

(See  "Return.") 

No.  609. — AfTfid2vit  of  Auctioneer  or  Return  of  Sale  of  Per- 
sonal Estate. 
[Title  of  Court  and  Estate.] 

ACCOUNT  OF  SALE— PART  OF  FORM  NO.  1527,  P.  906. 

State  of  Califorfiia, 
County  of  Alameda, — ss. 

Name  of  Article  Sold.  Name  of  Purchaser.      Amount  Bid. 

I  Gold  Watch  and  Chain W.  B $     106  00 

2^  Shares  Zenith  G.  and  S.  Mining  Co.  D.  F. 

100  Shares  C.  C.  Mining  Co A.   IV. . 

50  Shares  N.  &  J.  Mining  Co 0.  C.  K.. 

5  Shares  S.  V.  Mining  Co P.  G.  P.. 


2,525 

00 

700 

00 

Soo 

00 

50 

00 

$4,181    00 


CHARGES. 

Advertising  in  R $T2  50 

Commissions,  as  per  agreement 50  00 


62  50 

Net  proceeds  of  sales $4,118  00 

I   do   solemnly   swear   that   the   alx)ve-described   articles   were 
sold  bv  me  for  the  amounts,  and  to  the  persons  above  named. 
(Se^  "Return.") 

No.  610. — Affidavit  of  Posting  Notice — Return  of  Sale  of  Real 

Estate. 

[Title  of  Court  and  Estate.] 

SCHEDULE  "A." 
State  of  Calif orni-a, 
City  and  County  of  San  Francisco, — ss. 

A.  B.  C,  of  said  city  and  county,  being  duly  sworn,  says :  That 
he  is  over  the  age  of  eighteen  years,  not  interested  in  or  a  party 
to  the  estate  of  T.  J.,  deceased. 


422 


New  Book  ot  Forms. 


That  on  the  eighth  day  of  December,  ipo6,  he  posted  true,  full, 
and  correct  copies  of  the  annexed  notice  of  the  time  and  place  of 
holding  the  sale  of  real  estate  ordered  by  this  court,  in  the  matter 
of  said  estate,  on  the  seventh  day  of  December,  ipo6,  in  three 
of  the  most  public  places  in  the  said  county,  to  wit,  one  copy  of 
said  notice  at  tJie  auction  salesrooms  of  A.  B.  C,  one  at  the  United 
States  PostoMce,  and  one  at  the  sheriff's  ofhce,  City  Hall,  in  said 
city  and  county;  and  that  said  notices  remained  posted  for  three 
weeks  successively  next  before  the  day  of  sale  mentioned  in  said 
notice. 

NOTE. — As  to  "oaths,"  "affidavits,"  "sworn,"  "verified,"  "un- 
der oath,"  see  under  heads  of  "Verification";   "Return." 


No.  6ii. — Affidavit  of  Service  by  Mail. 

[Title  of  Court  and  Cause.] 

State  of  Calif omia. 

City  and  County  of  San  Francisco, — ss. 

/.  M.,  being  duly  sworn,  deposes  and  says :  That  he  is  an  attor- 
ney at  law,  and  is  the  attorney  of  record  for  the  above-named 
plaintiff  in  the  above-entitled  cause,  and  that  he  resides  at  the 
city  and  county  of  San  Francisco,  in  the  state  of  California;  that 
E.  F.  W.,  is  the  attorney  of  record  for  the  above-named  defendant 
in  said  cause,  and  that  he,  said  E.  F.  W.,  resides  at  Redwood 
City,  county  of  San  Mateo,  in  said  state  [or  that  his  office  is  at 
No.  §^4  Montgomery  street,  Redzvood  City]  ;  that  in  each  of  said 
two  places  there  is  a  United  States  postofhce  and  between  said 
two  places  there  is  a  regular  daily  communication  by  mail ;  that 
on  the  nineteenth  day  of  August,  190^,  deponent  served  a  true 
copy  of  the  amended  complaint  herein  on  said  E.  F.  W.,  the  said 
attorney  of  said  defendant,  by  depositing  such  copy  of  complaint, 
on  said  date,  in  the  postoffice  at  said  city  and  county  of  San  Fran- 
cisco aforesaid,  properly  inclosed  in  an  envelope,  addressed  to 
said  E.  F.  W.,  attorney  at  law,  at  Redzvood  City,  San  Mateo 
county,  said  place  of  residence,  and  prepaying  the  postage  thereon. 
(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec.  1013.  In  case  of  service  by  mail, 
the  notice  or  other  paper  must  be  deposited  in  the  postoffice,  addressed 
to  the  person  on  whom  it  is  to  be  served,  at  his  office  or  place  of  resi- 
dence, and  the  postage  paid.  The  service  is  complete  at  the  time  of 
the  deposit,  but  if  within  a  given  number  of  days  after  such  service  a 
right  may  be  exercised,  or  an  act  is  to  be  done  by  the  adverse  party, 
the  time  within  which  such  right  may  be  exercised  or  act  be  done  is 
extended  one  day  for  every  twenty-five  miles  distance  between  the 
place  of  deposit  and  the  place  of  address;  such  extension,  however,  not 


ApproAviT.  423 

to  excopd  ninety  days  in  all:  Alaska,  Codes,  pt.  4,  e.  50,  sees.  495-503, 
638;  Arizona,  C.  C.,'pars.  1339,  1370,  1372,  1568,  1596;  Idaho.  C.  C.  P., 
Bee.  3711;  Montana,  C.  C.  P.,  sees.  1832,  1833;  Nevada,  Comp.  Laws, 
Ht'ca.  3591-3593;  North  Dakota,  C.  C.  P.,  sees.  56G9,  5726;  Oregon,  fo-Jea 
and  Statutes,  sees.  539-541,  543,  820-823;  South  Dakota,  C.  C.  P.,  aor-s. 
507,  554,  556;  Utah,  Rev.  Stata^  sees.  3332,  3333;  Washingtoa,  Bal- 
linger's  Codes,  sees.  4890,  4891. 

No.  612. — Affidavit  of  Service  of  Notice. 
[Title  of  Court  and  Cause,] 

State  of  California, 
County  of  Butte, — ss. 

A.  B.,  being  duly  sworn,  says :  That  he  is  the  attorney  of  record 
for  the  defendant  herein;  that  at  twelve  o'clock  M.,  on  the  third 
day  of  August,  igo6,  he  served  the  plaintiff  herein  with  defend- 
ant's notice  of  motion  to  take  the  deposition  of  A.  C.  in  this  ac- 
tion, by  leaving  a  copy  of  said  notice  at  the  residence  of  said  plain- 
tiff, No.  S27  Polk  street,  in  the  city  and  county  of  San  Francisco. 
At  that  time  the  said  plaintiff  was  absent  from  his  said  residence, 
and  tlie  said  notice  was  handed  to  S.  P.  C,  the  wife  of  said  plain- 
tiff, his  wife  being  a  discreet  person  over  twenty-one  years  of  age 
[or  any  other  person  of  suitable  age  (legal  age)  and  discretion]. 

(All  courts.) 

No,  613. — Affidavit  of  Service  of  Notice — Clerk,  etc 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

[The  same  as  in  the  preceding  dozvn  to  the  words  "a  copy  of 
said  notice,"  then  say:]  with  A.  G.  T.,  the  clerk  of  A.  W.  A'.  the 
attorney  of  plaintiff,  [or  say:  with  L.  B.,  who  had  at  that  time 
charge  of  said  office;  and  then  add:]  the  said  A.  W.  A.  beino-  at 
that  time  absent  from  said  office. 

(All  courts.) 

No.  614. — Affidavit  of  Service — Office  Table. 
[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

A.  B.,  being  duly  sworn,  says :  That  he  is  the  attomev  of  rec- 
ord for  the  defendant  herein ;  that  at  ttvelve  o'clock  M.,  on  the 
third  day  of  August,  iQOf,,  he  served  on  the  plaintiff"  herein  de- 


424  New  Book  of  Forms. 

fendant's  notice  of  motion  to  take  the  deposition  of  A.  C.  in  this 
action,  by  leaving  a  copy  of  said  notice  on  the  only  table  in  the 
law  office  of  A.  W-,  the  said  plaintiff's  attorney  herein,  at  No. 
£7S  Sansome  street,  in  the  city  and  county  of  San  Francisco,  said 
table  being  in  a  conspicuous  place  in  said  office,  to  wit,  the  table 
used  by  the  said  A.  W.  when  engaged  in  attending  to  his  busi- 
ness as  attorney  at  law.  When  said  notice  was  so  left  on  said  table 
said  office  was  open,  but  n-o  person  zvas  in  it  and  a  notice  was  on 
the  office  door  gi'z'ing  noti-ce  that  said  attorney  had  gone  to  lunch, 
and  would  return  in  three  hours. 
All  courts. 

No.  615.— Affidavit— Sole  Trader. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

I,  A.  J.,  do,  in  the  presence  of  Almighty  God,  solemnly  swear, 
that  this  application  was  made  in  good  faith,  for  the  purpose  of 
enabling  me  to  support  myself  and  my  five  cltiidren,  viz.,  A.  J.,  IV. 
J.,  F.  J.,  A.  J.,  and  E.  J.,  and  not  with  any  view  to  defraud,  delay, 
or  hinder  any  creditor  or  creditors  of  my  husband,  and  that  of  the 
moneys  so  to  be  used  by  me  in  business  not  more  than  five  hun- 
dred dollars  has  come,  either  directly  or  indirectly,  from  my  hus- 
band.    So  help  me  God. 

NOTE.— California,  C.  C.  P.,  sec.  1818;  Idaho,  C.  C,  see.  3883;  Mon- 
tana, C.  C.  P.,  sec.  2295;  Nevada,  Comp.  Laws,  see.  546. 

No.  616. — Affidavit — Substitution  of  Party. 
[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

/.  M.,  being  duly  sworn,  says :  That  he  is  defendant  in  the 
above-entitled  action  [and  lias  been  served  zvith  suiiimons  therein, 
but  has  not  answered]  ;  that  said  action  is  prosecuted  agamst  de- 
fendant to  recover  from  him  a  gray  stallion  known  as  "H.  L." ; 
that  one  H.  N.,  not  a  party  to  said  action,  claims  to  own  said 
stallion  and  to  be  entitled  to  his  possession,  and  he  makes  said 
claim  without  any  collusion,  but  in  good  faith ;  and  he  has,  since 
said  action  was  commenced,  demanded  said  stallion  of  defendant; 
that  affiant  has  no  interest  in  said  stallion  or  in  the  result  of  said 
action. 

Wherefore,  affiant  prays  for  an  order  substituting  said  H.  N. 
as  defendant  herein  in  place  of  affiant,  and  to  discharge  affiant 
from  liability  to  either  party  in  the  action. 

(All  courts.) 


AFrTnAvrr.  425 

NOTE.— California,  C.  C.  P.,  socs.  385,  386;  Alaska,  Codes,  pt.  4,  c. 
3,  sees.  38-41;  Arizona,  C.  C,  par.  1308;  Idaho,  (\  (\  P.,  sfc.  3!  7.5; 
Montana,  C.  C.  P.,  sees.  587,  588;  Nevada,  Comp.  Laws,  sec.  3693;  North 
Dakota,  C.  C.  P.,  sees.  5238-5240;  Oregon,  Codfs  and  Statutes,  sees.  40, 
327;  South  Dakota,  C.  C.  P.,  socs.  91,  94,  97;  T'tah,  Bev.  Stats.,  sees. 
2921-2925;   "Washington,   Ballinger'a   Codes,   sec.   4842. 

No.  617. — Affidavit  (Justification)   of  Sureties. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

/.  B.  and  S.  J.,  the  sureties  named  in  the  above  bond,  being 
duly  sworn,  each  for  himself,  says:  That  he  is  a  Jwuseholder  and 
resident  within  said  state,  and  is  worth  the  said  sum  of  one  thou- 
sand dollars  over  and  above  all  his  debts  and  liabilities,  exclusive 
of  property  exempt  from  execution. 

(All  courts.) 

NOTE. — CaKfomia,  C.  C.  P.,  sec.  1057;  Alaska,  Codes,  pt.  4,  c.  12, 
Bees.  109,  110;  Arizona,  C.  C.  pars.  426-431,  820,  918;  Idaho,  C.  C.  P., 
sees.  3740  (civil  actions),  3278  (replevin);  Montana,  C.  C.  P.,  sees. 
1899,  1901;  Nevada,  Comp.  Laws,  sees.  1902,  3688,  3699,  4471,  4472, 
4477;  Oregon,  Codes  and  Statutes,  sees.  269,  271,  288,  346,  549,  2210; 
South  Dakota,  C.  C.  P.,  sees.  160,  170,  173,  174,  188,  191,  222,  458;  Utah, 
Rev.  Stats.,  sec.  3493,  generally;  in  special  proceedings,  sees.  3024, 
3026,  3049,  3051,  3060,  3068,  3085,  3312,  3493,  3748,  3831,  4997,  5169; 
Washington,  Ballingcr's  Codes,  sees.  5355,  5480,  5481;  Wyoming,  Eev. 
Stats.,  sees.  3424,  3973,  4154,  4529. 

No.  618. — Affidavit  of  Sureties  Annexed  to  Officer's  Official 

Bond- 
State  of  California, 
City  and  County  of  San  Francisco, — ss. 

S.  N.  P.,  J.  M.  W.  and  /.  C.  B.,  sureties  in  the  foreg-oins:  bond, 
being  separately  and  duly  sworn,  each  says  for  himself,  that  he 
is  a  resident  and  freeholder  [or  householder]  within  the  state  of 
California,  and  county  aforesaid,  and  that  he  is  worth  the  amount 
for  which  he  becomes  liable  as  surety  specified  in  the  foregoing 
bond,  over  and  above  all  his  debts  and  liabilities,  in  unencum- 
bered property  situated  within  this  state,  exclusive  of  property 
exempt  from  execution. 
(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec.  1057;  Arizona,  C.  C,  pars.  235,  236; 
Idaho,  P.  C,  sec.  291;  Montana,  Pol.  C,  sec.  1858;  Nevada,  Comp. 
Laws,  sees.  2842,  2843;  Oregon.  Codes  and  Statutes,  sees.  2531.  2555. 
2666;  South  Dakota,  Pol.  C,  sees.  1792-1801;  Utah,  Rev.  Stats.,  see. 
3493;  Washington,  Ballingcr's  Codes,  sees.  1527,  1528;  Wyoming,  Eev. 
Stats.,  sec.  2617. 


426  New  Book  of  Forms. 

No.  619. — Affidavit  of  Service  of  Summons  by  Mail. 
[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  oi  San  Francisco, — ss. 

W.  R.,  of  said  a'ty  and  county,  being  duly  sworn,  says:  That 
he  is  a  male  citizen  of  the  United  States,  over  eighteen  (18) 
years  of  age  and  not  a  party  to  the  above-entitled  action. 

That  on  the  fifteenth  day  of  August,  ipo6,  the  complaint  in 
said  action  was  filed,  and  aftersvard,  to  wit,  on  the  sixteenth  day 
of  August,  IQ06,  an  order  was  made  by  the  court  for  the  publica- 
tion of  the  summons  in  said  action,  and  also  a  further  order 
that  a  copy  of  said  complaint  and  a  copy  of  said  summons  should 
be  forthwith  deposited  in  the  United  States  postoffice,  at  the  city 
and  county  of  San  Francisco,  directed  to  the  defendant,  R.  R.,  in 
said  action  at  his  place  of  residence,  to  wit,  at  the  city  and  county 
of  New  York,  state  of  New  York;  that  forthwith,  to  wit,  on  the 
fifteenth  day  of  August,  igo6,  and  in  pursuance  of  the  said  order 
of  the  court,  he  deposited  in  the  United  States  postoffice,  at  the 
city  of  San  Francisco,  a  copy  of  said  summons,  attached  to  a 
copy  of  the  said  complaint,  directed  to  R.  R.,  the  said  defend- 
ant, at  the  city  and  county  of  New  York,  state  of  New  York,  the 
place  of  his  residence,  as  aforesaid,  and  paid  the  postage  thereon 
in  advance,  and  that  there  is  a  regular  communication  by  the 
United  States  mails  from  said  postoffice  of  deposit  thereof,  as 
aforesaid,  to  said  defendant's  said  place  of  residence. 

All  courts. 

NOTE. — In  California,  section  413  of  the  code  requires  the  judge  to 
order  a  copy  of  the  summons  and  complaint  deposited  in  the  postoffice. 
Section  415  only  requires  affidavit  of  the  deposit  of  a  copy  of  the  sum- 
mons, but  the  affidavit  should  always  be  as  in  the  form:  Alaska,  Codes, 
pt.  4,  c.  4,  sees.  52,  6.38;  Arizona,  C.  C,  pars.  1329,  1334;  Idaho,  C.  C. 
P.,  sees.  3195,  3196;  Montana,  C.  C.  P.,  sees.  637-640;  Nevada,  Comp. 
Laws,  sees.  3128,  3129;  North  Dakota,  C.  C.  P.,  sec.  5254;  Oregon,  Codes 
and  Statutes,  sees.  57,  62,  539-541,  543;  South  Dakota,  C.  C.  P.,  sees. 
507,  554,  556;  Utah,  Eev.  Stats.,  sec.  2952;  Washington,  Ballinger's 
Codes,  sec.  4882;   Wyoming,  Rev.  Stats.,  see.  3705. 

No.  620. — Affidavit  of  Publication  of  Notice  to  Creditors. 

[Title  of  Court  and  Estate,] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

IV.  F.,  of  the  said  city  and  county,  being  duly  sworn,  deposes 
and  says :  That  he  is  over  eighteen  years  of  age ;  that  he  has  no 


Affidavit. 


427 


interest  whatsoever  in  the  estate  mentioned  therein  and  is  not  a 
party  thereto ;  and  that  he  is  the  principal  clerk  of  the  printers 
and  publishers  of  The  Shoutcr,  a  newspaper  published  daily;  in 
said  city  and  county,  and  has  charge  of  all  the  advertisements  in 
said  newspaper,  and  that  the  notice  to  creditors  in  the  case  of  the 
estate  of  T.  J.,  deceased,  of  which  notice  the  following  is  a  printed 
copy:  [Here  insert  printed  copy]  has  been  published  once  a  zveek 
for  four  successive  weeks  in  the  above-named  newspaper,  com- 
mencing on  the  first  day  of  July,  ipo6,  and  ending  on  the  thirty- 
first  day  of  July,  ipo6  (both  days  inclusive),  and  further  he  say- 
eth  not. 

(All  courts.) 

NOTE. — In  California  evidence  of  the  publication  of  a  document  or 
notice  required  by  law,  or  by  an  order  of  a  court  or  judge,  to  be  pub- 
lished in  a  newspaper,  may  be  given  by  the  affidavit  of  the  printer  of 
the  newspaper,  or  his  foreman  or  principal  clerk,  annexed  to  a  copy  of 
the  document  or  notice,  specifying  the  times  when  and  the  paper  in 
which  the  publication  was  made:  C.  C.  P.,  sec.  2010. 

The  publication  must  be  made  daily,  or  otherwise  as  often  during  the 
prescribed  period  as  the  paper  is  regularly  issued,  unless  otherwise  pro- 
vided in  Code  of  Civil  Procedure.  The  court  or  judge  may  order  a 
less  number  of  publications  during  the  period:  Id.,  sec.  315.  Alaska 
Codes,  pt.  4,  c.  60,  sec.  638;  Idaho,  C.  C.  P.,  sees.  4447-44.53;  Montana', 
C.  C.  P.,  sees.  641,  642;  Nevada,  Comp.  Laws,  sees.  3128,  3129;  North 
Dakota,  C.  C.  P.,  sec.  5262;  Oregon,  Codes  and  Statutes,  sees.  820  8''2- 
South  Dakota,  C.  C.  P.,  sec.  507;  Utah,  Rev.  Stats.,  sec.  4035;  Washintrl 
ton,  Ballinger's  Codes,  sees,  4875,  4882;  Wyoming,  Rev.  Stats.,  see.  3705. 

No.  621. — Affidavit  of  Posting  Notice, 
[Title  of  Court  and  Estate.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss, 

B.  L.,  of  said  city  and  county,  being  duly  sworn,  says :  That  he 
is  over  the  age  of  eighteen  years,  not  interested  in  or  a  party  to 
the  estate  of  T.  J.,  deceased ;  that  on  the  sixth  day  of  January, 
igo5,  he  posted  correct  and  true  copies  of  the  foregoing  notice 
in  three  of  the  most  public  places  in  said  city  and  county,  to  wit, 
one  of  the  said  copies  at  the  place  at  which  the  court  is  held,  one 
at  the  United  States  postofUce,  and  one  at  tiie  Hall  of  Records,  in 
said  city  and  county. 

(All  courts.) 


428  New  Book  of  Forms. 

No.  622. — Affidavit  of  Posting  Any  Notice. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

/.  L.,  being  duly  sworn,  says:  That  he  is  over  the  age  of 
eighteen  years,  and  not  interested  in  the  estate  of  R.  R.,  deceased, 
and  is  not  a  party  thereto;  that  on  the  first  day  of  March,  igo6, 
he  posted  three  notices,  of  which  the  above  is  a  copy,  in  three 
of  the  most  pubhc  places  in  the  said  city  and  county,  to  wit,  one 
of  said  notices  at  the  United  States  postoMce,  one  at  the  Old 
City  Hall,  and  one  at  the  place  where  the  said  superior  court  is 
held,  in  said  city  and  county. 

(All  courts.) 

No.  623. — Affidavit  of  Posting  Notice  of  Settlement  of  Account. 
[Title  of  Court  and  Estate.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

R.  S.,  of  said  city  and  county,  being  duly  sworn,  says :  That  he 
is  over  the  age  of  eighteen  years,  not  interested  in  the  estate  of 
T.  /.,  deceased,  and  is  not  a  party  thereto;  that  on  the  sixteenth 
day  of  June,  igo6,  he  posted  correct  and  true  copies  of  the  above 
notice  in  three  of  the  most  public  places  in  said  city  and  county, 
to  wit,  one  of  said  copies  at  the  place  at  which  the  court  is  held, 
one  at  the  United  States  postoihce,  and  one  at  the  Hall  of  Records 
in  said  city  and  county. 

No.  624. — Affidavit  of  Publication  of  Summons. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

/.  B.,  of  said  county,  being  duly  sworn,  says:  That  he  is  over 
the  age  of  eighteen  years,  to  wit,  twenty-seven  years  of  age,  and 
is  competent  to  be  a  witness  on  the  trial  of  the  above-entitled 
action,  and  is  not  a  party  thereto ;  that  he  is  the  principal  clerk 
oL  the  Daily  Evening  Wish,  a  daily  newspaper  printed,  published 
and  circulated  in  the  said  city  and  county ;  that  the  summons,  of 
which  the  annexed  is  a  printed  copy,  was  published  in  said  news- 
paper at  least  once  a  week  and  every  week,  for  two  months,  com- 
mencing on  the  fifteenth  day  of  May,  ipo^,  and  ending  on  the 
twenty-second  day  of  July,  ipo^. 

(All  courts.) 


ArriD.wiT. 


429 


NOTE. — Tn  California  proof  of  service  of  summons  may  be  made,  in 
case  of  publication,  by  the  affiflavit  of  the  printer,  or  his  foreman,  or 
principal  clerk,  showing  the  same  and  an  afliflavit  of  a  deposit  of  a 
copy  of  the  summons  in  the  postoffice:  C.  C.  P.,  sees.  413,  415;  Alaska, 
Codes,  pt.  4,  c.  60,  sec.  6S8;  Arizona,  C.  C,  pars.  1.328.  1.329.  1.3.34,  133t); 
Idaho,  C.  C.  P.,  sec.  3198;  Montana,  C.  C.  P.,  sees.  3330-3.336;  Nevada, 
Comp.  Laws,  sees.  3128,  3129;  North  Dakota,  C.  C.  P.,  sees.  5262  5669, 
5670;  Oregon,  Codes  and  Statutes,  sees.  820,  822;  South  Dakota,  C.  C. 
P.,  sees.  112,  507,  592;  Utah,  Rev.  Stats.,  sec.  2952;  Washington,  Bal- 
linger's  Codes,  sec.   4875;   Wyoming,  Bev.  Stats.,  sec.  3705. 


No.  625. — Affidavit  of  Service  of  Summons. 
[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

/.  S.,  being  duly  sworn,  deposes  and  says:  That  he  is,  and  was 
on  the  day  when  he  served  the  annexed  summons,  a  male  citizen 
of  the  United  States,  over  the  age  of  eighteen  years  and  is  not  a 
party  to  the  above-entitled  action ;  that  he  received  the  annexed 
summons  in  said  action  on  the  nineteenth  day  of  August,  ipo^, 
and  personally  served  the  same  upon  R.  R.,  the  above-named  de- 
fendant, on  the  said  nineteenth  day  of  August,  ipoj,  by  deliver- 
ing to  R.  R.,  the  said  defendant,  personally,  in  the  city  and  countv 
of  San  Francisco,  a  copy  of  said  summons,  attached  to  a  true 
copy  of  the  complaint  in  said  action  therein  named ;  and  deponent 
further  says  that  he  knozvs  the  person  so  served  to  be  the  person 
named  as  defendant  in  said  action. 

(All  courts.) 

NOTE. — In  California  the  snmmons  may  be  served  by  the  sheriff  of 
the  county  where  the  defendant  is  found,  or  by  any  other  person,  over 
the  age  of  eighteen,  not  a  party  to  the  action.  A  copy  of  the  com- 
plaint must  be  served  with  the  summons.  When  the  summons  is  served 
by  the  sheriff,  it  must  be  returned,  with  his  certificate  of  its  service, 
and  of  the  service  of  any  copy  of  the  complaint,  where  such  copy  13 
served,  to  the  office  of  the  clerk  from  which  it  issued.  When  it  is 
served  by  any  other  person,  it  must  be  returned  to  the  same  place,  with 
an  affidavit  of  such  person  of  its  service,  and  of  the  service  of  a  copy 
of  the  complaint,  where  such  copy  is  served:  C.  C.  P.,  sec.  411;  Alaska, 
Code^,  pt.  4,  c.  5,  sec.  52;  Arizona,  C.  C,  par.  1327;  Idaho,  C.  C.  P., 
sec.  3198;  Montana.  C.  C.  P.,  sees.  641,  642;  Nevada,  Comp.  Laws,  sees. 
3128,  3129;  North  Dakota,  C.  C.  P.,  sec.  5262;  Oregon,  Codes  and  Stat- 
utes, sec.  820;  South  Dakota,  C.  C.  P.,  sec.  507;  Utah,  Rev.  Stats.,  sec. 
2952;  Washington,  Ballinger 'b  Codes,  sec.  4875;  Wyoming,  Rev.  Stats.^ 
see.  3705. 


430  New  Book  of  Forms. 

No.  626. — Affidavit  for  Publication  of  Summons. 
[Title  of  Court  and  Cause.] 
State  of  California, 
City  and  County  of  San  Francisco, — ss. 

/.  D.,  being  duly  sworn,  says:  That  he  is  the  pb.intiff  in  the 
above-entitled  action ;  that  the  complaint  in  said  action  was  filed 
with  the  clerk  of  said  court  on  the  second  day  of  December,  190 j, 
and  summons  thereupon  issued ;  that  said  action  is  brought  to 
recover  the  sum  of  five  thousand  dollars,  due  and  unpaid  from 
said  defendant,  R.  R.,  to  this  plaintiff  upon  a  promissory  note 
made  by  said  defendant,  and  dated  at  the  city  of  San  Francisco, 
on  the  first  day  of  January,  ipo^,  payable  in  thirty  days  after 
date  to  the  plaintiff,  zvith  interest  at  the  rate  of  tzi'o  per  cent  per 
month  until  paid.  [The  cause  of  action  should  be  stated  as  fully 
as  in  a  pleading,  if  reference  is  not  made  to  the  complaint  on 
file.]  The  cause  of  action  is  set  forth  in  his  verified  complaint, 
on  file  herein. 

That  said  defendant  resides  out  of  this  state  and  cannot,  after 
due  diligence,  be  found  therein  [or  that  he  has.  departed  from 
this  state;  or  cannot,  after  due  diligence,  be  found  within  this 
state;  or  conceals  himself,  to  avoid  service  of  summons;  6r  is  a 
foreign  corporation,  having  no  managing  or  business  agent,  cash- 
ier, or  secretary  within  the  state.  That  defendant  is  a  neces- 
sary party.']  And  this  affiant  states  the  following  facts  and  cir- 
cumstances :* 

Affiant,  for  the  purpose  of  finding  said  defendant  and  as- 
certaining his  place  of  residence,  has  made  due  and  diligent  in- 
quiry of  and  among  the  relations,  former  neighbors,  friends,  busi- 
ness agents,  and  correspondents  of  the  defendant  [stating  the 
names  of  the  parties  inquired  of],  and  is  informed  by  A.  B.,  the 
agent  [or  other  neighbors]  of  the  defendant,  residing  in  the  city 
and  county  of  San  Francisco,  that  the  defendant  is  not  in  and 
does  not  reside  in  this  state;  but  he  is  and  resides  out  of  the 
state,  and  that  his  present  place  of  residence  is  at  the  city  of 
D.,  in  the  state  of  Iowa. 

That  affiant  has  made  diligent  inquiry  to  find  said  defendant, 
but  cannot,  after  due  diligence,  find  him  within  this  state. 

That  this  affiant  therefore  says  that  personal  service  of  said 
summons  cannot  be  made  on  said  defendant,  R.  R.,  and  prays  for 
an  order  that  service  of  the  same  may  be  made  by  publication 
thereof. 

(All  courts.) 


•See  as  to  residence  Forms  No.  1588,  p.  961;  No.  1590,  p.  962;  No.  1598, 
p.   965. 


Affidavit.  431 

NOTE. — In  California,  in  this  class  of  procrpdings,  it  must  appear 
to  the  satisfaction  of  the  oflicer  making  the  order  that  a  cause  of  ac- 
tion exists,  and  that  defend;int  comes  within  one  of  the  ciausfs  of  the 
statute  permitting  publication  of  summons.  Sometimes  a  judge  de- 
mands a  return  by  the  sheriff  that  he  (the  sheriff)  cannot  find  the  de- 
fendant, etc.  It  may  happen,  too,  that  in  cases  where  all  the  facta 
showing  a  cause  of  action  are  not  stated  in  the  alTidavit,  that  after 
publication  the  court  may  sustain  a  demurrer  to  the  complaint,  referred 
to  in  the  affidavit,  on  the  ground  that  it  does  not  state  facts  sufficient 
to  constitute  a  cause  of  action.  It  has  been  done,  and,  logically,  the 
order  of  publication  would  seem  to  be  void.  In  all  places,  at  some 
stage  of  the  proceedings,  when  the  residence  is  known,  an  order  is 
made  to  mail  a  copj'  of  the  summons  and  complaint  to  the  person  to 
be  served,  or  else  the  copy  must  be  mailed  without  an  order:  C.  C.  P., 
sec.  412.  Alaska,  Codes,  pt.  4,  c.  4,  sec.  47;  Arizona,  C.  C,  par.  1329; 
Idaho,  C.  C.  P.,  sec.  319o;  Montana,  C.  C.  P.,  sec.  642;  Nevada,  Comp. 
Laws,  sees.  3125,  3126;  North  Dakota,  C.  C.  P.,  sec.  5254;  Oregon,  Codes, 
and  Statutes,  sees.  820,  822;  South  Dakota,  C.  C.  P.,  sec.  112;  Utah,  Rev. 
Stats.,  sec.  2948;  "Washington,  Ballinger's  Codes,  sec.  4877;  Wyoming. 
Rev.  Stats.,  sees.  3552,  3705. 


No.  627. — Affidavit  of  Tender  of  Pa5mient — Demand  to  be  Re- 
stored to  Possession, 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

S.  S.,  being  duly  sworn,  says:  That  on  the  twenty-sixth  day 
of  August,  as  ordered  by  [state  who  made  the  order]  he  tendered 
to  W.  B.,  the  plaintiff  in  this  action  the  sum  of  one  hundred  and 
two  dollars,  and  demanded  that  he  surrender  to  afifiant  the  prem- 
ises described  in  affiant's  petition  herein  and  in  the  complaint, 
and  at  the  same  time  affiant  delivered  to  said  JV.  B.  a  copv  of 
the  order  or  judgment  of  court  herein,  restoring  affiant  to  pos- 
session of  said  premises  upon  payment  as  aforesaid ;  a  copy  of 
which  order  or  judgment  is  hereto  attached  and  referred  to  and 
marked  "Exhibit  A" ;  that  the  said  W.  B.  refused  to  restore  affi- 
ant to  the  said  possession,  or  to  accept  said  money ;  and  replied 
that  he  was  in  possession  of  said  premises  and  proposed  to  stay 
there. 

Wherefore,  affiant  prays  that  the  said  JV.  B.  may  be  cited  to 
show  cause  why  he  should  not  be  punished  for  contempt  of  court. 
(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  1174,  1209;  Idaho,  C.  C.  P.,  sec. 
3990;  Montana,  C.  C.  P.,  sec.  2099;  Nevada,  Comp.  Laws,  sec.  382S; 
Oregon,  Codes  and  Statutes,  sec.  338;  Utah,  Rev.  Stats.,  sec.  3584; 
Washington,  BaUinger 'b  Codes,  sec.  5545;  Wyoming,  Rev.  Stats.,  sec. 
3705. 


432  New  Book  of  Forms. 

No.  628. — Affidavit  for  Removal  of  Executors  for  Mismanage- 
ment. 
[Title  of  Court  and  Estate.] 

State  of  California, 
County  of  Yuba, — ss. 

C.  D.,  being  duly  sworn,  says:  That  he  is  a  creditor  of  the  es- 
tate of  said  deceased.  That  his  claim  against  said  estate  for 
$io,s^y  was  within  the  time  and  in  the  manner  and  form  re- 
quired by  law  presented  to  A.  B.,  the  executor  of  said  estate,  and 
was  by  him,  in  writing,  approved,  and  his  approval  indorsed  upon 
said  claim  as  is  by  law  required,  and  after  its  approval  was  pre- 
sented within  the  time  required  by  law,  to  the  judge  of  said  court 
who,  before  the  expiration  of  the  time  specified  by  law,  approved 
said  claim  for  $10,^2^,  by  indorsing  his  approval  thereon,  and 
which  claim  was,  upon  the  day  of  its  approval  by  said  judge,  filed 
and  entered  in  the  proper  case  and  book  as  an  acknowledged  claim 
against  said  estate,  and  no  part  thereof  has  been  paid.  That  the 
inventory  and  appraisement  of  said  estate  shows  that  the  total 
value  of  the  said  estate's  property  is  $60,000,  and  no  more.  That 
the  account  of  said  executor  filed  within  sixty  days  after  the  ex- 
piration of  the  time  for  the  presentation  of  claims  show  that 
claims  to  the  amount  of  $60,000  have  been  approved  and  filed. 
That  all  the  property  of  said  estate  has  been  sold,  so  that  there 
remains  on  hand  $40,000  and  no  more  out  of  which  the  debt  and 
expenses  of  administration  must  be  paid.  That  the  expenses  of 
administration  already  accrued  amount  to  $10,000,  leaving  a  bal- 
ance of  $^0,000  with  which  to  pay  $60,000.  That  among  the 
assets  of  said  estate  appears  an  item  of  $20,000  secured  by  mort- 
gage in  favor  of  said  deceased,  valued  at  $20,y6j,  principal  and 
interest.  That  said  executor  commenced  an  action  to  foreclose 
said  mortgage,  which  action  was  defended  and  submitted  for 
judgment,  with  the  result  that  the  negligence  of  said  executor 
permitted  the  statute  of  lim.itations  of  the  state  of  California  to 
run  against  said  mortgage  before  action  was  brought  to  fore- 
close, and  said  $20,76^  has  been  lost  to  said  estate  because  of  the 
mismanagement  of  said  executor.  Wherefore  affiant  prays  that 
said  executor  be  removed. 

NOTE.— California,  C.  C.  P.,  sees.  1436,  1438;  Alaska,  Codes,  pt.  4, 
c.  81,  sec.  783;  Arizona,  C.  C,  par.  1940;  Idaho,  C.  C.  P^  sec.  4101; 
Montana,  C.  C.  P.,  sec.  2928;  Nevada,  Comp.  Laws,  sees.  2827,  2835, 
2837,  2849,  2854,  .3028,  3031;  North  Dakota,  Probate  Code,  sees.  6363- 
6371;  Oregon,  Codes  and  Statutes,  sec.  1121;  South  Dakota,  Probate 
Code,  sees.  133-137;  Utah,  Eev.  Stats.,  3837;  Washington,  Ballinger'a 
Codes,  sees.  6168,  6169;   Wyoming,  Rev.  Stats,,  sec.  4&42. 


Answer — PtEADiNca  433 


ANSWER— PLEADINGS. 


No,  629, — Answer — Acceptance  Unauthorized. 

[Title  of  Court  and  Cause,] 

The  defendant  answers  to  the  complaint,  and  alleges: 
That  the  said  bill  was  made  without  the  authority  or  consent 
of  these  defendants,  and  out  of  the  course  of  their  regxilar  busi- 
ness, and,  without  consideration  to  them,  accepted  in  their  name 
by  one  A.  B.,  fraudulently  pretending  to  act  under  their  author- 
ity, but  who  in  fact  had  no  authority  to  accept  the  same. 

No.    630. — Answer — Accommodation   Acceptance. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint,  and  alleges: 
That  he  accepted  the  bill  mentioned  in  the  complaint  for  the 
accommodation  of  the  plaintiff ;  and  that  there  was  never  any 
value  or  consideration   for  the   acceptance  or  payment  of  said 
bill  by  the  defendant. 

No.  631. — Answer — ^Account. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

1.  That  after  the  said  dealings  in  said  complaint  named,  and 
before  the  commencement  of  this  action,  to  wit :  on  the  third  day 
of  May,  igo6,  the  said  A.  B.  and  C.  D.  came  to  a  mutual  account- 
ing touching  the  several  matters  and  things  in  said  complaint 
mentioned. 

2.  That  on  the  said  accounting,  there  was  found  due  from  the 
said  A.  B.  to  the  said  C.  D.  $130,  as  a  final  balance  upon  said 
mutual  dealing  and  matters  between  the  said  A.  B.  and  C.  D. 

3.  And  the  said  C.  D.  avers  that  the  said  stated  account  is 
just  and  true. 

Wherefore,  he  claims  judgment  against  the  plaintiff  for  said 
sum  of  $130,  and  interest  from  said  third  day  of  May,  ipo6,  and 
costs. 

New  Forma — 2S 


434  New  Book  of  Forms. 

No.  632. — Answer — Accounting  and  Payment. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 
I.     That  on  the  eighth  day  of  May,  ipo6,  at  P.,  he  accounted 

with  and  paid  over  to  the  plaintiff  all  money  received  by  him  up 

to  that  day,  as  such  agent  of  the  plaintiff. 

No.  633. — Answer — ^Accounting  and  Payment. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 
I.     For  a  first  defense: 

1.  He  denies  each  and  every  allegation  in  said  complaint,  ex- 
cept what  is  hereinafter  admitted. 

II.  The  defendant  admits  that  said  plaintiff  did,  at  the  re- 
quest of  defendant,  enter  into  the  service  of  the  defendant  as 
stated  in  the  complaint,  but  alleges  that  he  did  account  with  said 
plaintiff"  on  the  ninth  day  of  May,  ipo6,  at  P.,  and  that  on  the 
said  accounting  there  was  found  due  said  plaintiff  only  the  sum 
of  $40. 

2.  For  a  second  defense,  defendant  alleges  that  after  said 
accounting  in  the  first  defense  alleged,  to  wit:  on  the  fifteenth 
day  of  May,  ipo6,  he  paid  to  the  plaintiff  the  said  sum  of  $40 
so  found  due  upon  said  accounting,  and  the  plaintiff  received 
and  accepted  the  same  in  full  satisfaction  of  his  said  claim. 

No.  634. — Answer — Accord  and  Satisfaction. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

1.  That  on  the  eighth  day  of  April,  ipo6,  at  P.,  he  delivered 
to  the  plaintiff  the  promissory  note  of  B.  C,  for  $100. 

2.  That  the  plaintiff  accepted  the  same  in  full  satisfaction 
and  discharge  of  the  claim  [or  demand]  set  up  in  the  complaint. 

No.  635. — Answer — Agreement  to  Take  Note, 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

I.  That  said  goods  were  sold  and  delivered  to  said  defendant 
by  said  plaintiff"  on  an  express  agreement,  by  and  between  them, 


Answer — Pleadings.  435 

that  said  plaintiff  should  accept  in  payment  therefor  a  promissory 
note  for  the  sum  of  $68,  drawn  by  this  defendant,  and  dated  on 
the  fifth  day  of  May,  1906  [with  an  approved  indorser.] 

2.  That  on  the  seventeenth  day  of  June,  TO06,  and  before 
this  action,  the  defendant  tendered  to  the  plaintiff  such  a  note  as 
above  described  indorsed  by  one  C.  D.,  who  was  then,  and  still 
is,  a  banker,  in  good  credit  and  ability,  and  an  approved  indorser, 
and  is  still  ready  and  willing-  to  deliver  the  same. 

3.  That  the  defendant  refused  to  receive  the  same. 


No.   636. — Answer — Alteration  of  Instrument. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  after  the  making  [or  acceptance]  and  issue  of  said  note 
[or  bill],  and  before  this  action,  the  same  was  materially  altered, 
without  the  consent  of  the  defendant,  by  adding  the  signature 
of  A.  B.  as  a  joint  maker  thereof  [or  by  cutting  off  the  signature 
of  A.  B.  as  a  joint  maker  thereof;  or  by  adding  the  words  "pay- 
able at  sight";  or  otJierivise,  as  the  case  may  be]. 

No.  637. — Answer — Another  Action  Pending. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to*  the  complaint,  and  alleges : 
That  there  was  at  the  commencement  of  this  action,  and  still 
is,  another  action  pending  in  the  justice's  court  of  the  [describe 
the  court] ,  between  the  same  parties,  and  for  the  same  cause  of 
action  as  that  in  the  complaint  herein  stated  and  alleged. 

No.  638. — Answer — Application  to  Join  in  Action. 
[Title  of  Court  and  Cause.] 

/.  A.,  being  duly  sworn,  says :  That  he  is  the  owner,  with  plain- 
tiff, of  an  undivided  one-half  interest  in  the  zvagon  described  in 
the  complaint  herein;  that  plaintiff  and  affiant  purchased  said 
wagon  as  partners,  and  that  the  person  from  whom  th^y  pur- 
chased it  neglected  to  insert  affiant's  name  in  the  bill  of  sale  of 
said  property,  but  inserted  plaintiff's  name  only;  and  affiant  is 
informed  and  believes,  and  therefore  avers,  that  he  is  a  proper 
party  plaintiff'  herein,  and  he  therefore  prays  that  he  may  be  per- 
mitted to  join  in  this  action  as  a  party  plaintiff. 


436  New  Book  of  Forms. 

No.    639. — Answer — Arbitration   and    Award. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

1.  That  on  the  eleventh  day  of  April,  ipo6,  the  plaintiff  and 
defendant  [in  ztriting]  mutually  submitted  the  demand  set  forth 
in  the  complaint  to  the  arbitration  of  A.  B.  and  C.  D.,  and  which 
said  submission  has  never  been  revoked. 

2.  That  on  the  twenty-first  day  of  April,  ipo6,  at  P.,  the  said 
A.  B.  and  C.  D.  made  and  published  their  award  {by  which  they 
declared  the  plaintiff  not  entitled  to  any  part  of  his  said  demand.  ] 

3.  A  copy  of  said  submission  and  of  said  award  is  hereto  at- 
tached,  marked  "Exhibit  A,"  and  made  part  hereof. 

No.  640. — Answer — Arrest,  Justification  of. 
[Title  of  Cotut  and  Cause.] 

The  defendant  answers  to  the  complaint: 

1.  That  immediately  before  the  time  mentioned  in  the  com- 
plaint a  felony  was  committed  [briefly  state  the  felony  and  causes 
of  suspicion  against  the  plaintiff']. 

2.  That  thereupon  the  defendant,  who  was  then  and  there 
sheriff  of  the  county  of  Butte,  having  reasonable  cause  to  suspect 
the  plaintiff  of  having  committed  such  felony,  arrested  him  and 
brought  him  before  /.  P.,  a  justice  of  the  peace  of  Butte  [or  other 
magistrate],  to  be  dealt  with  according  to  law. 

3.  That  the  above  acts  are  the  same  of  which  plaintiff  com- 
plains. 

No.  641. — Answer — Arrest — Criminal  Process. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

1.  That  before  and  at  the  time  of  the  committing  of  the  al- 
leged trespasses  he,  the  said  defendant,  was  a  constable  [or 
sheriff]  within  and  for  the  town  [or  county]  of  B. 

2.  That  a  warrant  was  duly  issued  by  one  A.  B.,  under  his 
hand  and  seal,  and  directed  to  any  constable  [or  sheriff]  of  said 
B.,  which  then  was  delivered  to  this  defendant  as  such  constable 
[or  sheriff],  to  be  executed;  whereby  he  was  commanded  to 
arrest  the  said  plaintiff  and  bring  him  forthwith  before  said  jus- 
tice [or  state  before  whom]  there  to  answer  to  the  charge  of  hav- 
ing feloniously  stolen  and  carried  away  the  goods  and  chattels 
of  one  C.  D.,  to  the  value  of  $50  [setting  forth  the  tenor  of  the 
writ  or  warrant  according  to  its  effect]. 


Answer — Pleadings.  437 

3.  That  the  said  A.  B.,  then  was  a  justice  of  the  peace,  within 
and  for  the  town  of  B.,  duly  elected  and  qualified,  and  acting  as 
such. 

4.  That  by  virtue  of  the  said  v/arrant  so  issued,  he,  the  said 
defendant,  did  arrest  the  said  plaintiff,  and  had  him  in  his  cus- 
tody until  he  was  disdiarged  [or  state  facts]. 

No.  642. — Answer — Arrest — Justification. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  That  at  and  immediately  before  the  time  mentioned  in  the 
complaint,  the  defendant  was  a  constable  in  the  town  of  P.  [or 
designate  other  official  character]. 

2.  That  he  was  then  informed  [here  state  sources  of  informa- 
tion], that  a  felony  had  been  committed,  in  the  robbery  of  [state 
felony,  and  the  grounds  for  suspicion  of  the  plaintiff]. 

3.  That  thereupon,  believing  such  information  to  be  true,  and 
acting  thereon,  as  was  his  duty  to  do,  he  arrested  him,  and 
brought  him  before  /.  P.,  a  justice  of  the  peace  of  P.  [or  other 
magistrate],  to  be  dealt  with  according  to  law. 

4.  That  the  above  acts  are  tlie  same  of  which  plaintiff  com- 
plains. 

No.  643. — Answer — No  Equitable  Assignment. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint,  and  alleges: 
That  the  said  A.  B.  did  not  assign  or  transfer  to  the  said  de- 
fendant the  note  in  said  mortgage  mentioned,  or  the  money  due 
thereon,  in  manner  or  form  as  the  said  plaintiff  hath  in  his  said 
complaint  alleged,  or  in  any  manner,  or  at  all. 

No.  644.— Answer— Assignment  to  Third  Person. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  before  the  rent  claimed  in  the  complaint  became  due,  and 
on  or  about  the  tenth  day  of  May,  ipo6,  the  defendant  assi'gned 
all  his  interest  in  said  lease  to  one  C.  D.,  who  then  entered  into 
possession,  and  so  continued  when  said  rent  became  due. 


438  New  Book  of  Forms. 

No.  645. — Answer — Bankruptcy  of. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

I.  That  on  the  tzvelfth  day  of  April,  1906,  at  P.,  the  United 
States  district  court,  of  the  ninth  district  of  California,  made 
and  granted  to  the  defendant  a  decree  of  discharge  from  his 
debts  as  a  bankrupt,  of  which  decree  of  discharge  a  copy  is  an- 
nexed [afuiex  copy  of  decree]  and  made  a  part  hereof. 

No.  646. — Answer — Same — By  Deed. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

1.  That  he  admits  that  on  the  tzvelfth  day  of  April,  igo6,  he 
was  indebted  to  the  plaintiffs,  as  alleged  in  the  complaint. 

2.  That  afterward,  on  the  nineteenth  day  of  April,  ipo6,  at  P., 
the  plaintiffs,  by  their  deed  under  seal,  agreed  with  the  defendant 
that  they  would  accept  $130,  then  and  there  paid  them  by  the 
defendant,  and  by  the  plaintiffs  then  and  there  accepted  and  re- 
ceived, in  full  satisfaction  of  said  indebtedness ;  and  divers  other 
creditors  of  the  defendant  then  and  there  also,  by  the  same  deed, 
agreed  to  accept,  and  did  accept,  the  sum  concurrently  with  the 
said  plaintiffs,  in  full  satisfaction  of  the  several  debts  of  defend- 
ant of  such  creditors  respectively,  and  covenanted  with  the  de- 
fendant not  to  sue  the  defendant  for  such  respective  debts ;  a 
copy  of  which  deed  is  hereto  annexed  as  a  part  hereof.  [Insert 
copy.] 

No.  647. — Answer — Bona  Fide  Purchaser. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint,  and  alleges: 
I.  That  the  plaintiff  ought  not  to  have  his  action  aforesaid; 
because  he  avers  that  the  said  defendant  did,  on  the  seventeenth 
day  of  June,  igo6,  buy  of  the  said  A.  B.  the  said  lands  and  tene- 
ments bona  fide,  for  the  consideration  of  $280,  he,  the  said  A.  B., 
being  then  seised  in  fee,  and  in  possession  thereof  [here  state  how 
and  when  paid,  and  if  notes  were  given,  aver  the  giving  of  them], 
and  without  any  fraud  or  intent  to  hinder,  or  delay,  or  defraud 
the  said  A.  B.,  or  the  other  creditors  of  the  said  A.  B.,  and  with- 
out any  knowledge,  information,  or  belief,  at  that  time  or  pre- 
vious thereto,  that  the  said  A.  B.  sold  the  said  premises  with  the 
intent  charged  in  the  said  complaint. 


Answer — Pleadings.  439 

No.  648. — Answer — Capacity,  Want  of. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

1.  That  the  plaintiff  was  not,  at  the  commencement  of  this 
action,  and  is  not  now,  a  citizen  of  the  United  States,  but  was, 
and  is,  an  alien,  born  in  England,  out  of  the  allegiance  of  the 
United  States,  and  unthin  the  Kingdom  of  Great  Britain. 

2.  That  at  the  commencement  of  this  action  the  government 
of  said  Great  Britain  was,  and  still  is  at  war  with,  and  is  an 
enemy,  of,  the  United  States. 

3.  That  the  plaintiff  then  was,  and  still  is,  an  alien  enemy, 
abiding  without  the  United  States,  and  at  London,  within  said 
Great  Britain,  and  adhering  to  the  said  enemies  of  the  United 
States. 

No.  649. — Answer — Capacity,  Want  of. 

[Title  of  Coiirt  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  before  the  commencement  of  this  action,  and  on  or  about 
the  twenty-eighth  day  of  April,  igo6,  at  P.,  the  plaintiff  duly 
assigned  the  subject  matter  and  cause  of  action  set  forth  in  the 
complaint  to  one  B.  S.,  who  then  was,  and  has  been  ever  since, 
the  holder  thereof. 

No.  650. — Answer — Capacity,  Want  of. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

1.  That  there  was  not  at  the  commencement  of  this  action,  nor 
is  there  now,  any  such  corporation  as  the  M.  L.  M.  Company, 
named  as  plaintiff  in  this  action. 

2.  That  the  plaintiff  was  not  a  de  facto  corporation,  nor  did 
the  persons  claiming  to  compose  the  said  alleged  corporation,  at 
the  commencement  of  this  action,  nor  at  any  of  the  times  men- 
tioned in  the  complaint,  claim  in  good  faith  to  be  a  corporation. 

No.  651. — Answer — Capacity,  Want  of. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

That  since  the  expiration  of  said  first  year  [or  after  the  twenty- 
third  day  of  February,  igo6],  he  has  not  been  a  trustee  of  said 


440  New  Book  of  Forms. 

company,  and  has  not  in  any  way  managed  the  affairs  or  con- 
cerns of  said  company  as  such. 

No.  652. — Answer — Claim  and  Delivery. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  denies: 

1.  That  the  plaintiff,  at  the  time  stated  in  the  complaint,  or 
ever,  or  at  all,  was  in  possession,  or  entitled  to  the  possession,  of 
the  goods  described  in  the  complaint,  or  any  of  them. 

2.  Denies  that  said  goods  or  any  of  them,  are  or  ever  were 
the  property  of  the  plaintiff. 

3.  Denies  that  said  goods  are  or  were,  at  the  time  alleged,  or 
at  any  time  since,  of  the  value  of  ^75,  or  any  amount  greater 
than  '$75. 

No.  653. — Answer — Claim,  Compromise  of. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint : 

1.  {State  demand  set  up  by  plaintiff.] 

2.  That  afterward,  on  the  fourteenth  day  of  April,  ipo6,  at  P., 
the  defendant  agreed  to  pay  and  the  plaintiff  agreed  in  writing 
to  accept  $200,  in  full  satisfaction  of  said  claim,  as  a  compromise 
thereof. 

No.  654. — Answer — Consideration,  Failure  of. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

1.  That  he  gave  said  undertaking  to  said  A.  B.  solely  in  con- 
sideration of  the  performance  by  said  A.  B.  of  the  covenants  and 
conditions,  upon  his  part,  in  an  agreement  then  made  between 
them,  of  which  agreement  a  copy  is  annexed  as  a  part  of  this 
answer. 

2.  That  this  defendant  duly  performed  all  the  conditions  there- 
of on  his  part. 

No.  655. — Answer — Consideration,  Want  of. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

That  he  received  no  consideration  for  the  [promissory  note] 
mentioned  therein.  [Mistake,  or  any  fact  showing  fraud,  should 
be  alleged.] 


Answer — Pleadings.  441 


No.  656. — Answer — Consideration,  Want  of. 
'[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

1.  That  the  defendant  and  the  plaintiff  played  together  at  a 
game  of  chance  called  faro,  for  stakes,  upon  credit,  and  not  for 
ready  money,  and  at  said  game  the  plaintiff  won  ^55  of  the  de- 
fendant, which  he  did  not  pay. 

2.  That  thereafter,  the  defendant  gave  the  plaintiff  the  note 
mentioned  in  the  complaint  for  said  money  so  staked  and  lost. 

No.    657. — Answer — Consideration,   Want   of. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 

1.  That  heretofore,  on,  etc.,  at,  etc.,  one  C.  R.,  the  son  of  the 
said  defendant,  had  feloniously  [here  designate  the  crime — e.  g., 
thus:  stolen,  taken,  and  carried  away  five  hams,  the  property  of 
the  plaintiff]. 

2.  That  the  said  defendant,  in  order  to  compound  and  settle 
said  felony,  gave  the  said  note,  in  consideration  of  which  the 
plaintiff  and  others  desisted  from  informing  and  prosecuting  upon 
said  felony. 

3.  That  there  was  no  other  consideration  for  said  note. 

No.  :58. — Answer — Contract,  Alteration  of. 

[Title  of  Court  and  Cause.] 

The  dc'^endant  answers  to  the  complaint: 

1.  That  on  the  tenth  day  of  April,  ipo6,  at  P.,  the  plaintiff 
agreed  with  C.  D.  in  the  complaint  mentioned,  in  consideration 
of  $fio  to  extend  the  time  of  payment  of  the  rent  guaranteed  by 
the  defendant  thirty  days. 

2.  That  the  defendant  had  no  knowledge  of  the  said  extension, 
and  did  not  then,  nor  has  he  since,  assented  thereto. 

No.  659. — Answer — Contract,  Explaining. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

1.  That  it  was  a  part  of  the  agreement  referred  to  in  the  com- 
plaint that  the  plaintiff  should  deliver  the  goods  sold  at  P. 

2.  That  the  said  goods  have  not  been  so  delivered. 


442  New  Book  of  Forms. 


No.  660. — Answer — Contract,  Rescission  of. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

That  after  the  contract  alleged  in  the  complaint,  and  before 
anv  breach  thereof,  it  was  agreed  by  and  between  the  plaintiff 
and  the  defendant  that  the  said  contract  should  be  waived,  aban- 
doned, and  rescinded ;  and  they  tlien  waived,  abandoned,  and 
rescinded  the  same  accordingly. 

No.  661. — Answer — Contract  was  Special, 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

That  the  goods  mentioned  in  the  complaint  were  delivered  by 
the  plaintiffs  to,  and  received  by,  the  defendants,  upon  a  special 
contract  between  them,  whereby  it  was  provided  that  [state 
terms  of  contract]. 

No.  662. — Answer — Contract  was  not  in  Writing. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint  that  it  was  not  in 
writing. 

No.  663. — Answer — Controverting  Title. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  no  part  of  the  goods,  wares,  and  merchandise  in  the  com- 
plaint mentioned  was  the  property  of  plaintiff  when  sold  to  de- 
fendant ;  but  the  same  then  was  the  property  of  one  A.  B.,  and 
who  alone,  and  not  the  plaintiff,  sold  the  same  to  this  defendant- 
No.  664. — Answer — Counterclaim, 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint,  and  for  counterclaim 
alleges : 

That,  etc.  [state  a  cause  of  action  precisely  as  in  a  complaint^. 
Wherefore,  the  defendant  demands  judgment  for  $2^0. 


Answer — Pleadings.  443 

No.  665. — Answer — Credit,  No  Negligence  in  Giving. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  he  sold  said  goods  to  one  A.  B.,  who  was  a  merchant  at 
P.,  in  good  standing  and  credit,  for  the  sum  of  $i,ooo;  and  for 
the  payment  of  said  sum  he  took  the  bill  of  the  said  A.  B.,  drawn 
on  and  accepted  by  one  C.  D.,  payable  in  three  months  after 
date,  which  bill  was  at  the  time  held  and  considered  an  approved 
bill. 

No.  666. — Answer — Credit  Unexpired. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

1.  That  the  goods  mentioned  therein  were  sold  to  him  upon  a 
credit  of  three  months  from  the  twenty-first  day  of  February, 
igo6. 

2.  That  such  period  had  not  elapsed  before  the  commencement 
of  this  action. 

No.  667. — Answer — Death  of  Defendant. 
[Title  of  Court  and  Cause.] 
The  defendant  C.  D.  answers  to  the  complaint: 
That  A.  B.,  one  of  the  defendants  in  this  action,  died  at  P., 
before  this  action,  and  on  or  about  the  seventeenth  day  of  April, 
igo6. 

No.  668. — Answer — Deceit. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  [Allege  sale  as  in  case  of  an  action  for  damages  for  deceit.] 

2.  That  said  note  was  given  to  the  plaintiff  without  any  other 
consideration  than  said  [sale]. 

That  immediately  on  discovering  said  fraud,  the  defendant  re- 
scinded said  [contract],  and  tendered  to  the  plaintiff  all  that  he 
had  received  under  said  contract,  upon  condition  of  his  return- 
ing said  note,  which  the  plaintiff  refused  to  do. 

No.  669. — Answer — Defendant  Part  Owner. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

That  at  the  several  times  mentioned  in  the  complaint  the  de- 


444  New  Book  of  Forms. 

fendant  was,  and  still  is,  the  owner  of  an  undivided  half  of  said 
goods,  wares,  and  merchandise,  and  defendant  was  then,  and  still 
is,  in  the  possession  of  the  whole  of  said  goods. 

No.  670. — Answer — Demurrer  and  Answer. 

[Title  of  Court  and  Cause.] 

The  defendant  demurs  [or  the  defendants,  naming  them,  if 
only  a  part  of  them  join,  demur]  to  the  first  [or  other]  cause  of 
action  stated  in  the  complaint,  on  the  following  grounds: 

1.  [State  the  grounds]. 

2.  And  for  answer  to  the  plaintiff's  complaint,  the  defendant 
alleges : 

That,  etc. 

No.  671. — Answer — Acceptance,  Denial  of. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 
That  the  bill  of  exchange  mentioned  in  the  complaint  was  not 

presented  for  acceptance  nor  accepted,  as  alleged,  or  at  all,  and 

that  it  was  not  presented  for  payment,  nor  was  it  protested  for 

nonpayment. 

No.  672. — Answer — Agreement,  Denial  of. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  plaintiff's  complaint: 
That  he   denies  that  he   contracted   or  agreed   with   the   said 

plaintiff  in  manner  or  form  as  alleged  in  the  complaint,  or  in 

any  manner  or  form,  or  at  all. 

No.    673. — Answer — Denial,    Articles   by. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint,  and  denies  each  and 
everj'  allegation  contained  in  the  [third  and  iifth]  articles  thereof. 

No.  674. — Answer — ^Assignee,  Denial  by. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 
That  said  [lessee]  did  not  hire  the  premises  from  the  defend- 
ant as  alleged ;  and  that  no  assignment  of  any  such  lease   was 


Answer — Pleadings.  445 

made  to  or  accepted  by  the  defendant,  as  alleged ;  and  that  the 
defendant  did  not  occupy  the  premises  under  the  alleged  lea^e, 
or  under  any  lease. 


No.  675. — Answer — Bailment,  Denial  of. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  That  said  goods  described  in  the  complaint  were  not  the 
property  of  the  plaintiff,  and  were  not  deposited  with  the  de- 
fendant by  him  or  his  agents. 

2.  That  the  same  was  the  property  of  one  A.  B.,  to  whom  the 
possession  of  them  belonged  when  this  action  was  brought. 

No.   676. — Answer — Denial — Contract,   Breach   of. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint,  and  alleges: 
That  the  defendant  duly  performed  said  covenant  [or  all  the 
conditions  of  said  contract]  on  his  part ;  and  [here  state  perform- 
ance, pursuing  the  words  of  the  covenant,  if  it  he  in  the  affirma- 
tive; and  stating  particidar  acts,  if  it  he  done  in  the  alternative, 
in  any  case  where  this  can  he  done  without  too  great  prolixity^. 


No.  677. — Answer — Denial — Breach  of  Promise. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint,  and  denies: 
That  the  defendant  has  refused  to  marry  the  plaintiff,  but 
avers  that  on  the  sixteenth  day  of  May,  IQ06,  and  ever  since,  he 
has  been  ready  and  willing  to  marry  her,  but  at  the  date  above 
mentioned,  and  at  all  times  since  then,  the  plaintiff  has  refused 
to  marry  this  defendant. 


No.  678. — Answer — Denial,  Breaking,  oL 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

That  the  defendant  did  not  break  into  nor  enter  the  premises 
of  the  plaintiff  as  alleged,  or  in  any  other  manner. 


446  New  Book  of  Forms. 

No.  679. — Answer — Common  Carrier — DeniaL 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  he  is  not  now,  and  was  not  at  the  time  mentioned  in  the 
complaint,  or  at  any  other  time,  a  common  carrier. 


No.  680. — ^Answer — Denial,  Conditions  Precedent,  of. 

[Title  of  Court  and  Cause,] 
The  defendant  answers  to  the  complaint,  and  denies: 
That  the  plaintiff  did  perform  the  conditions  precedent  to  said 

contract  on  his  part  to  be  performed ,  or  any  one  of  them,  or  at 

all,  or  that  he  made  any  deposit,  or  tender,  or  [state  what,  as  m 

contract  required.] 


No.  681. — Answer — Denial  of  Conditional  Delivery. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint,  and  denies: 
That  the  said  promissory  note  [or  deed]  was  executed  or  de- 
livered by  the  plaintiff  on  the  condition  and  understanding  al- 
leged, but  avers  that  it  was  delivered  by   him  absolutely  and 
without  condition. 


No.  682. — Answer — Denial  of  Demand. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint,  ana  denies: 
That  the  plaintiff  demanded  the  proceeds  of  the  goods  therein 
mentioned  before  the  commencement  of  this  action. 


No.  683. — Answer — Denial  of  Employment. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  he  did  not  undertake  or  agree  to  carry  the  said  goods  to 
P.,  nor  to  deliver  them  to  A.  B.,  and  that  said  A.  B.  never  paid 
him,  nor  agreed  to  pay  him,  any  reward  for  such  service. 


Answer — Pleadings.  447 

No.  684. — Answer — Denial — Falsity  of  Chcirge. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint,  and  denies : 
That  the  representations  alleged  to  have  been  made  by  the  de- 
fendant to  the  plaintiff  were  false ;  but,  on  the  contrary  thereof, 
avers  that  said  representations  and  each  of  them  were  and  are 
true. 

No.  685. — Answer — Denial  of  Fraud, 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint,  and  denies: 

That  he  made  the  said  representations  in  manner  and   form 

as  the  same  are  in  the  said  complaint  alleged,  or  otherwise,  or  at 

all. 

No.  686. — Answer — The  Same — Another  Form. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  plaintiff's  complaint,  and  denies: 
That  he  [obtained  the  said  deed  from  the  plaintiff]   by  fraud 
and  misrepresentation,  in  manner  and  form  as  the  said  plaintiff 
hath  in  his  said  complaint  alleged,  or  by  any  fraud  or  misrepre- 
sentation whatever. 

No.  687. — Answer — Denial,  General. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  [or,  if  only  a  part  of  the  defendants 
join,  the  defendants  A.  B.  and  C.  D.  answer]  the  complaint  of 
the  plaintiff  herein  and  denies  generally  and  specifically  each  and 
every  allegation  in  the  said  complaint  contained. 

No.  688. — Ansv^er — Denial,  General. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

That  the  defendant  has  not  committed  the  acts  alleged,  or  anv 
one  of  them  [or  the  defendant  denies  each  and  every  allegation 
thereof.] 


448  New  Book  of  Forms. 

No.  689. — Answer — Denial,  General. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

I.  That  he  denies  each  and  every  allegation  contained  in  the 
paragraphs  numbered  4  and^,  on  folios  i  and  2  of  plaintifiE's  com- 
plaint. 

No.  690. — Answer — Guaranty,  Denial  of — General  Form. 
[Title  of  Court  and  Cause.] 

A.  B.  and  C.  D.,  two  of  the  defendants  in  the  above-entitled 
action,  separately  answering  the  complaint  of  the  plaintiff  in  this 
said  action: 

1.  Deny  that  they,  or  either  of  them,  made  the  written  guar- 
anty set  forth  in  the  said  complaint. 

2.  They  deny  that  the  [ale  contained  in  the  barrels]  mentioned 
in  said  complaint  [  did  sour  during  its  voyage],  or  that  it  was 
[unfit  for  use]  when  it  arrived  here. 

Wherefore,  defendants  A.  B.  and  C.  D.  pray  to  be  dismissed, 
with  their  costs. 

No.  691. — Answer — Information  and  Belief,  Denial  oa. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That,  according  to  his  information  and  belief,  he  denies  gen- 
erally and  specifically  each  and  every  allegation  in  the  plaintiff's 
complaint  contained. 

No.  692. — Answer — Interest,  Denial  of. 

[Title  of  Court  and  Cause.] 

That  on  or  about  the  twenty-fourth  day  of  February,  igo6,  he 
sold  and  transferred  all  his  stock  and  interest  in  the  said  com- 
pany, and  that  he  had  not  then,  nor  has  he  had  since  that  time, 
nor  has  he  now,  any  property  or  interest  of  any  nature  or  kind 
whatsoever  in  the  said  company,  as  stockholder,  or  trustee,  or 
otherwise. 

No.  693. — Answer — Interest,  Denial  of  PlaintifT's. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 


Answer — Pleadings.  449 

I.  That  the  plaintiff  did  not  own,  and  had  no  insurable  inter- 
est in,  the  said  goods  [or  building,  etc.]  at  the  time  of  the  hap- 
pening of  said  loss. 


No.  694. — Answer — Denial,  Knowledge  oL 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  at  the  time  of  the  grievances  alleged  the  defendant  did 
not  know,  and  had  no  reason  to  believe,  that  said  dog  was  accus- 
tomed to  bite  mankind,  or  was  of  a  mischievous  nature  [or  other- 
wise, according  to  the  allegations  of  the  complaint]. 

No.  695. — Answer — Denial  of  Knowledge. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  plaintiff's  complaint: 

1.  That  he  denies  that  he  has  ever  been  within  the  state  of  Cali- 
fornia, or  that  he  ever  personally  transacted  any  business  therein. 

2.  Denies  that  he  did  at  the  time  stated,  or  at  any  other  time, 
do  or  say  [state  what]. 

No.  696. — Answer — Denial,  Knowledge  of,  to  Form  Belief. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  he  has  no  knowledge,  information,  or  belief  sufficient  to 
enable  him  to  answer  any  or  either  of  the  allegations  in  said 
complaint  contained,  and  therefore  he  denies  each  and  every  of 
said  allegations.  [Or  if  confined  to  one  allegation,  after  the  zvord 
"anstver"  proceed:]  the  allegation  that  [set  out  the  allegation,  or 
refer  to  it  so  as  to  clearly  identify  it]  ;  and  therefore  denies  tlie 
same. 

No.  697. — Answer — Loss,  Denial  of. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

I.  That  the  said  building  was  not  destroyed  [or  injured]  dur- 
ing term  of  said  insurance  by  [state  perils],  but  said  loss  occurred 
wholly  by  [indicate  the  excepted  peril]. 
New  Forms — 29 


450  New  Book  of  Forms. 

No.  698. — Answer — Loss,  Denial  of. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

That  he  denies,  on  his  information  and  belief,  that  said  goods 
were  lost  to  the  said  A.  B.,  and  denies  that  he  was^  negligent  in 
and  about  the  transporting,  storing,  or  unloading  of  the  same. 

No.  699. — Answer — Mortgage,  Denial  of. 

[Title  of  Court  and  Cause.] 
The  defendant  [purchaser]  answers  to  the  complaint: 
That  he  has  no  information  or  belief  sufficient  to  enable  him 
to  answer  the  allegations  in  plaintiff's  complaint  as  to  whether 
the  defendant  [mortgagor]  ever  executed  the  bond  and  mortgage 
described  in  the  complaint,  or  whether  the  defendant  [mortga- 
gee] ever  assigned  said  supposed  bond  and  mortgage  to  the  plain- 
tiff, or  whether  he  is  now  the  lawful  owner  or  holder  thereof; 
and  therefore  this  defendant  denies  that  said  defendant  [mort- 
gagor] at  any  time  executed  said  alleged  bond  or  mortgage,  and 
denies  that  said  defendant  [mortgagee]  at  any  time  assigned  said 
alleged  bond  or  mortgage  to  the  plaintiff,  and  denies  that  plain- 
tiff is  now  the  owner  or  holder  of  said  alleged  bond  or  mort- 
gage. 

No.  700. — Answer — Negligence,  Denial  of,  in  Sale. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint,  and  alleges : 

That  he  was  not  negligent  in  and  about  selling  said  goods,  but 

sold  the  same  with  due  diligence,  and  for  as  large  a  price  as  he 

could  obtain. 


No.  701. — Answer — Notice,  Denial  of. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint,  and  alleges: 
That  plaintiff  did  not  cause  his  said  mortgage  to  be  recorded 
as  alleged,  or  at  all,  and  that  this  defendant  had  no  notice,  actual 
or  constructive,  of  the  existence  of  plaintiff's  said  mortgage,  at 
or  before  the  time  this  defendant  took  his  said  conveyance  or  en- 
cumbrance. 


Answer — Pleadings.  451 

No.   702. — Answer — Notice,   Denial  of — Dishonor. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  notice  of  dishonor  of  the  note  [or  bill  of  exchange]  men- 
tioned in  the  complaint,  was  not  given  to  him. 

No.  703. — Answer — Nuisance,  Denial  of. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

That  the  defendant's  premises  have  not  been  used  as  a 
slaughter-house,  either  as  alleged  or  otherwise.  Or:  That  de- 
fendant did  not  erect  said  dam  as  alleged,  or  otherwise,  or  at  all. 

No.  704. — Answer — Offer  to  Perform,  Denial  of. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

I.  That  at  the  time  fixed  by  the  agreement  referred  to  in  the 
complaint,  the  plaintijT  was  not  ready  or  willing,  or  in  a  condi- 
tion, to  receive  the  merchandise  mentioned  in  the  said  agreement 
[or  any  part  thereof]. 

No.  705. — Answer — Capacity,  V/ant  of — Denial  of  Official  Ca- 
pacity. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint,  and  denies  that  the 
plaintiff  is  [executor  or  administrator  of  the  said  deceased,  or 
otherwise],  as  alleged,  or  at  all. 

No.  706. — Answer — Partnership,  Denial  of. 

[Title  of  Court  and  Cause.] 

The  defendant,  answering  the  complaint,  denies : 

That  the  said    [naming  them]    were  partners,  as  alleged;  or 

that  the  said  A.  B.  was  a  partner  with  the  said  [naming  them], 

as  alleged. 

No.   707. — Answer — Part  Performance,  Denial  of. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint,  and  denies: 
I,  That  he  put  plaintiff  into  or  consented  to  plaintiff's  taking 
possession  of  the  said  premises,  under  and  in  part  execution  of 


452  New  Book  of  Forms. 

the   said  pretended   sale  and  contract   of  the   said   premises,   as 
charged  in  said  complaint,  or  at  all. 

2.  The  defendant  avers  that  the  said  plaintiff,  of  his  own 
wrong,  and  without  the  license  and  against  the  consent  of  said 
defendant,  entered  into  said  premises,  and  occupied  and  improved 
the  same. 

No.  708. — Answer — Denial  as  to  Part,  and  Tender. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint : 

1.  That  he  agreed  to  pay  to  the  plaintiff  $60  only  [or  that 
the  goods  or  services  mentioned  therein  were  reasonably  worth 
no  more  than  $60]. 

2.  That  before  this  action,  on  the  twenty-eighth  day  of  April, 
ipo6,  at  P.,  he  tendered  to  the  plaintiff,  in  gold  and  silver  coin  of 
the  United  States  $60  in  payment  of  said  sum.  [Continue  as  in 
preceding  form.] 

No,  709. — Answer — Performance,  Denial  of. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  denies: 

1.  That  the  plaintiff  performed  the  conditions,  or  any  of  the 
conditions,  on  his  part,  in  the  said  agreement  referred  to  in  the 
complaint. 

2.  [Allege  negligence  in  defending  the  action  for  which  he 
was  sued,  and  want  of  notice  to  the  defendant  of  the  pendency  of 
the  same.] 

No.  710. — Answer — Plaintiffs  Performance,  Denial  of. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  the  plaintiff  has  not  performed  the  conditions  of  said 
agreement  on  his  part ;  but,  on  the  contrary,  has  wholly  omitted 
[here  state  breach]. 

No.  711. — Answer — Denial — Vicious  Dog,  Possession  of. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  he  does  not  own  the  said  dog,  and  never  did ;  and  that  he 
was  not  the  possessor  of  the  said  dog  at  the  time  of  the  griev- 
ances alleged  nor  at  any  other  time,  before  or  since  the  said 
alleged  grievances. 


Answer — Pi,e:adings.  453 

No.    712. — Answer — Presentment,    Denial    of. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  allej:^es: 
That  the  bill  mentioned  therein  was  never  presented  to  A.  B., 

as  alleged,  or  at  all. 

No.  713. — Answer — Denial — Probable  Cause,  Want  of. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

That  the  defendant  did  not  falsely  or  maliciously,  or  without 
probable  or  reasonable  cause,  cause  the  plaintiff  to  be  arrested; 
nor  did  he  cause  plaintiff  to  be  arrested  at  all. 

No.  714. — Answer — Promise,  Denial  of. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  denies: 
That  he  promised  or  agreed,  as  alleged  in  the  said  complaint, 

or  that  he  made  any  agreement  in  respect  to  the  matters  stated 

in  the  complaint. 

No.  715. — Answer — Promise,  Denial  of. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  the  complaint,  and  denies: 
That  he  ever  promised   [or  warranted  or  covenanted],  as  al- 
leged in  the  complaint    [or  that  he  ever  made  the  agreement  men- 
tioned in  the  complaint,  or  any  agreement,  at  any  time  or  place]. 

No.  716. — Answer — Promise,  Denial  of. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  plaintiff's  complaint: 
I.  That  he  did  not  make  with  said  plaintiff  the  said  agree- 
ment by  the  said  plaintiff  set  forth  and  alleged  in  his  said  com- 
plaint, and  denies  each  and  every  allegation  in  said  complaint  in 
regard  thereto. 

No.  717. — ^Answer — Representations,  Denial  oL 

[Title  of  Court  and  Cause.] 
The  defendant,  answering  the  complaint,  denies: 
That  he  made  the  representations  alleged,  or  any  or  either  of 

them. 


454  New  Book  of  Forms. 

No.  718, — Answer — Sale,  Denial  of. 
[Title  of  Court  and  Cause.] 

The  defendant,  answering  the  complaint,  denies  that  he  sold 
the  goods  described  in  the  complaint  to  the  plaintiff. 

No.  719. — Answer — Denials,  Specific. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint,  and  alleges: 

1.  That  there  is  no  record  remaining  in  said  court  of  such 
recovery  as  the  plaintiff  has  alleged: 

2.  That  the  said  A.  B.  has  goods  and  chattels,  lands  and  tene- 
ments liable  to  execution  for  the  satisfaction  of  money  due  on 
the  said  judgment. 

3.  That  the  said  A.  B.  has  no  goods,  or  chattels,  or  effects 
of  the  said  plaintiff  in  his  hands. 

No.  720. — Answer — Denial — Stock  Subscription. 
[Title  of  Court  and  Cause.] 

That  he  never  subscribed  for  any  stock  of  the  corporation  men- 
tioned in  the  complaint,  and  never  became  a  stockholder  in,  or 
the  holder,  or  owner  of  any  stock  of  the  said  corporation,  in  his 
own  right,  or  in  trust  for  others. 

No.  721. — Answer — Trust,  Denial  of. 
[Title  of  Court  and  Cause.] 

The  said  defendant  answers  to  the  complaint  of  plaintiff: 
And  denies  that  he  received  the  said  goods,  in  said  complaint 
mentioned,  for  the  purposes  and  on  the  trusts  aforesaid,  or  any 
of  them,  or  in  trust  at  all,  in  manner  alleged  in  said  complaint, 
or  in  any  manner. 

No.    722. — Answer — Trust,   Denial   of. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint  of  plaintiff: 

1.  That  the  said  plaintiff  did  not  deliver,  and  the  said  de- 
fendant did  not  receive,  the  said  [describe  what]  in  the  said  com- 
plaint mentioned,  upon  the  trust  and  confidence  therein  alleged. 

2.  The  said  defendant  avers  that  he  received  the  same  as  and 
for  his  own  property,  absolutely,  and  without  any  trust  thereto 
attached. 


Answter — Pleadings.  455 

No.   723. — Answer — Waste,   Denial   of. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  allej^es: 

1.  That  defendant  is  not  guilty  of  the  waste  and  destruction 
aforesaid,  in  manner  and  form  as  the  said  plaintiff  hath  in  his 
said  complaint  alleged,  or  in  any  manner,  or  at  all. 

2.  That  defendant  does  not  hold  the  said  premises  under  and 
as  tenant  to  the  said  plaintiff,  in  manner  and  form  as  the  plain- 
tiff in  his  complaint  hath  alleged,  or  at  all. 

3.  That  the  said  A.  B.  did  not  demise  the  said  premises  to 
the  said  C.  D.,  in  manner  and  form  as  the  said  plaintiff  hath  in 
his  said  complaint  alleged,  or  in  any  manner,  or  at  all. 

No.  724. — Answer — Duress. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

1.  That  the  [bond]  mentioned  therein  was  extorted  from  him 
by  threats  of  personal  violence,  and  was  executed  by  him  under 
fear  of  the  same  [or  from  fear  while  in  prison,  etc.;  state  force, 
etc.]. 

2.  That  the  said  [bond]  was  executed  by  him  without  any 
consideration  therefor. 

No.  725. — Answer — Dwelling,  Defense  of. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

1.  [Deny  heating  and  wounding.] 

2.  The  defendant  further  alleges  that  at  the  time  mentioned 
in  the  complaint  the  defendant  was  lawfully  possessed  of  [here 
designate  the  dzvclling]. 

3.  That  the  defendant  being  so  possessed  thereof,  the  plaintiff 
was  unlawfully  therein,  and  [state  unlawful  acts  lie  zvas  doing]. 

4.  That  thereupon  the  defendant,  in  defense  of  the  possession 
of  his  dwelling,  gently  laid  his  hands  upon  the  plaintiff  in  order 
to  remove  him,  as  he  lawfully  might. 

5.  That  the  acts  above  mentioned  are  the  same  of  which  the 
plaintiff  complains. 

No.  726. — Answer — Eviction. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 


456  New  Book  of  Forms. 

That  on  the  eleventh  day  of  May,  1906,  the  plaintiff  evicted 
him  from  the  premises  mentioned  in  the  complaint,  and  has  ever 
since  kept  him  out  of  the  possession  thereof  [or  state  the  facts]. 

No.  727. — Answer — Execution,  Justification  Under. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

1.  That  at  the  time  mentioned  in  the  complaint  the  defendant 
was  sheriflf  of  the  county  of  Napa,  in  this  state,  duly  elected  and 
qualified  as  such. 

2.  That  heretofore,  in  an  action  in  [state  the  court],  wherein 
A.  B.  was  plaintiff,  and  C.  D.,  the  plaintiff  herein,  was  defend- 
ant, judgment  was,  on  the  third  day  of  March,  1906,  rendered  in 
favor  of  the  said  A.  B.,  plaintiff  in  said  action,  against  the  said 
C.  D.,  defendant  therein,  for  the  sum  of  $500,  as  by  the  judg- 
ment-roll in  said  action,  on  file  in  the  office  of  the  county  clerk, 
more  fully  appears. 

3.  That  afterward,  on  the  seventeenth  day  of  March,  1906, 
execution  against  the  property  of  C.  D.,  based  upon  such  judg- 
ment, was  issued,  and  directed  to  and  delivered  to  this  defendant, 
as  sheriff  of  the  said  county  of  Napa,  for  service,  whereby,  after 
containing  the  statement  and  recital  of  the  matters  by  law  re- 
quired to  be  stated  and  set  forth  in  such  case,  and  after  setting 
forth  that  the  sum  of  $500  was  then  actually  due  on  the  said 
judgment,  this  defendant  was  in  substance  commanded  to  satisfy 
the  said  judgment  out  of  the  personal  property  of  said  judgment 
debtor  within  this  defendant's  county;  or,  if  sufficient  personal 
property  could  not  be  found,  then  out  of  the  real  property  in  this 
county  belonging  to  such  judgment  debtor,  and  to  return  the 
said  execution  within  sixty  days  after  its  receipt  by  him,  as  re- 
quired by  law. 

4.  That  under  and  by  virtue  of  the  said  execution  this  de- 
fendant, as  sheriff  of  the  said  county  of  Napa,  and  not  other- 
wise, levied  upon  certain  goods  and  chattels,  of  the  character  and 
description  of  those  mentioned  and  described  in  the  complaint, 
and  took  the  same  into  his  custody,  which  defendant  believes  to 
be  the  goods  and  chattels  referred  to  in  the  complaint,  and  that 
the  said  levy,  and  taking,  and  detention,  as  aforesaid,  constitute 
the  supposed  wrongful  taking  in  the  complaint  alleged. 

5.  And  this  defendant,  upon  his  information  and  belief,  avers 
that  the  goods  levied  on,  as  aforesaid,  were,  at  the  time  of  said 
levy,  the  property  of  the  said  C.  D. 


Answer — Pleadings.  457 

No.   728. — Answer — Fault.   Damage  by   Plaintiff's. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  That  the  goods  mentioned  in  the  complaint  were  a  danger- 
ous and  explosive  substance  known  as  nitroglycerin,  which  the 
plaintiff  then  well  knew,  but  which  the  defendant  did  not  know, 
and  could  not  reasonably  be  expected  to  know. 

2.  That  the  plaintiflFs  did  not  inform  the  defendant  of  the  de- 
structive nature  of  the  goods,  and  negligently  delivered  the  same 
to  the  defendant  in  bulk,  and  thereby  induced  the  defendant  to 
believe  that  the  same  might  be  placed  in  with  other  goods,  casks, 
and  boxes,  without  danger  or  injury. 

3.  [State  special  contract,  if  any,  which  was  thereby  violated.] 

No.  729. — Answer — Fence,  Justification  of  Rebuilding. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges : 

1.  That  the  fence  mentioned  in  the  complaint  was  a  part  of 
the  division  fence  upon  the  line  between  the  lands  of  the  plaintiff 
and  of  the  defendant,  which,  by  a  previous  agreement  between 
them,  the  defendant  was  bound  to  make  and  keep  in  repair. 

2.  That  he  took  up  and  removed  the  part  of  said  fence  which 
he  was  bound  to  repair,  and  replaced  the  same  with  a  new  fence. 

No.  730. — Answer — Forcible  Entry  and  Detainer. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  denies: 

1.  That  plaintiff  was,  at  the  time  stated,  or  at  any  time,  in  the 
actual,  or  peaceable,  or  exclusive  possession  of  the  property  de- 
scribed in  the  complaint,  or  any  part  thereof. 

2.  Denies  that  defendant  broke  into  the  premises  of  the  plain- 
tiff, as  alleged,  or  in  any  manner,  or  at  all. 

3.  Denies  that  plaintiff  suffered  any  damage  by  such  alleged 
breaking,  or  in  any  manner,  or  by  any  means,  either  as  alleged  in 
the  complaint,  or  at  all.  [Traverse  the  allegatictis  of  the  com- 
plaint specially.] 

No.   731. — Answer — Former  Judgment 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint : 
That  on  the  eighteenth  day  of  April,  igo6,  at  P.,  in  an  action 


458  New  Book  of  Forms. 

then  pending  in  the  justice's  court,  between  A.  B.,  plaintiff  and 
C.  D.,  defendant,  and  for  the  same  cause  of  action  as  that  set 
forth  in  the  complaint  herein,  judgment  was  duly  given  and 
made.     [Describe  the  judgment.'] 

No.  732. — Answer — Fraud. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  That  the  plaintiff  induced  him  to  make  the  note  mentioned 
in  the  complaint  by  representing  that  he  was  authorized  by  one 
A.  B.,  to  whom  the  defendant  owed  the  amount  of  the  same,  to 
take  a  note  to  himself  in  satisfaction  of  such  debt  [or  otherwise. 
State  the  fraudulent  misrepresentations,  etc.]. 

2.  That  the  said  representations  were  false. 

3.  That  the  defendant  received  no  consideration  for  the  said 
note. 

No,  733. — Answer — Fraud — Note  Procured  by. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 

1.  That  at  the  time  the  note  in  the  complaint  set  forth  was 
made,  he  was  indebted  to  one  B.  F.,  by  book  account,  in  the  simi 
of  $250. 

2.  That  the  plaintiff  at  the  time  falsely  and  fraudulently  rep- 
resented to  the  defendant  that  he  was  the  owner  and  assignee  of 
said  account  and  indebtedness,  and  thereby,  and  without  any 
consideration  whatever,  induced  the  defendant  to  make  said  note 
to  him  in  satisfaction  and  discharge  of  said  account. 

3.  That  the  said  representations  were  false,  and  that  the  plain- 
tiff never  was  the  owner  or  assignee  of  said  account,  nor  had  he 
any  beneficial  interest  in  the  same. 

4.  That  the  defendant  was  misled  by  said  false  representations 
[or  that  the  belief  of  the  defendant  in  the  truth  of  said  repre- 
sentations induced  him  to  make  said  note]. 

No.   734. — Answer — Fraudulent,  Conveyance  was  not. 

[Title  of  Court  and  Cause.] 

That  upon  the  making  of  the  alleged  assignment  [or  mortgage] 
there  was  an  actual  and  continued  change  of  the  possession  of 
the  assigned  [or  mortgaged]  property,  from  the  said  debtor  to 
the  transferees,  who  immediately  after  the  execution  of  the  as- 
signment [or  mortgage],  took  actual  and  exclusive  possession  of 
the  property;  and  that  it  has  at  all  times  since  the  assignment 
[or  mortgage]  remained  in  their  exclusive  possession  and  controL 


Answer — Plkadings.  459 

No.   735. — Answer — Goods  Furnished   Defendant's   Wife. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  That  the  articles  mentioned  therein  were  not  furnished  to 
his  said  [wife  or  child]  with  his  consent. 

2.  That  the  same  were  not  necessary  for  his   [wife  or  child]. 

No.  736. — Answer — Goods  not  Received. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  said  A.  B.  never  delivered  to  him  the  said  gfoods  men- 
tioned in  said  complaint,  and  that  he  never  received  the  same,  or 
any  of  them. 

No.  737. — Answer — Guardian,  Application  for  Appointment  of. 
[Title  of  Court  and  Cause.] 

L.  M.  Y.,  represents  to  the  court  that  the  plaintiff  in  interest 
therein,  B.  W.,  is  under  the  age  of  fourteen  years  [or  insane,  in- 
competent, etc.^  ;  that  he  has  no  general  guardian;  that  applicant 
is  a  friend,  and  also  the  attorney  for  said  B.  W.  in  said  action ; 
and  that  it  is  necessary  for  said  B.  IV.  to  have  a  guardian  ad  litem 
in  said  action. 

Wherefore,  he  prays  that  he  may  be  appointed  guardian  ad 
litem  for  said  infant  in  said  action. 

No.  738. — Answer — Guaranty,  Departure  from. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

I.  That  the  defendant  did  not  agree  to  be  answerable  generally 
to  the  plaintiff  for  value  of  goods  sold  to  the  defendant,  but  only 
for  goods  to  an  amount  not  exceeding  $100,  which  limit  the  plain- 
tiff exceeded  in  his  alleged  sale. 

No.  739. — ^Answer — Highway,   Collision  on. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

That  at  the  time  mentioned  in  the  complaint,  the  defendant 
was  driving  his  carriage  in  the  highway,  and  the  horse  of  the 
plaintiff,  being  at  the  same  time  there,  was  so  carelessly,  negli- 
gently and  improperly  managed  by  thie  plaintiff,  that  by  reason 
thereof  the  carriage  of  the  defendant,  without  any  fault  on  the 


460  Ni;w  Book  of  Forms. 

part  of  the  defendant,  and  by  want  of  due  care  in  the  manag-^ 
ment  of  his  horse  by  the  plaintiff,  was  driven  against  said  horse, 
and  thereby  said  horse  sustained  the  injury  alleged;  and  that 
if  any  damage  happened  to  said  horse,  it  was  caused  by  such 
accident,  and  not  by  the  fault  of  the  defendant. 

No.  740. — Answer — Illegal  Interest. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

As  to  the  sum  of  $20,  parcel  of  said  sum  of  $220,  in  said  com- 
plaint, demanded,  the  said  defendant  admits  that  he  owes  the 
said  sum  of  $200  to  the  said  plaintiff,  but  as  to  the  sum  of  $20, 
the  residue  of  the  said  sum  of  $220,  the  said  defendant  says  that 
the  said  promissory  note,  in  the  complaint  mentioned  was  given 
bv  the  said  defendant  to  the  said  plaintiff  for  the  loan  of  $200  for 
two  years,  and  no  more,  and  that  the  said  sum  of  $20  was  in- 
cluded in  said  note  as  interest  on  the  said  sum  of  $200  for  the  said 
term  of  tivo  years,  at  the  rate  of  Hve  per  cent  per  annum. 

No.  741. — Answer — Defendant,  Infancy  of, 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  at  the  time  of  making  the  supposed  agreement  [or  of  the 
delivery  of  the  goods]  mentioned  therein,  he  was  under  the  age  of 
[tzuenty-one]  years,  to  wit,  of  the  age  of  eighteen  years,  and  said 
agreement  did  not  relate  to  personal  property  in  the  immediate 
possession  and  control  of  this  defendant,  nor  for  things  necessary 
for  his  support. 

No.  742. — Answer — Plaintiff,  Infancy  of. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  the  plaintiff  is  not  of  the  age  of  twenty-one  years  [if  a 
female,  eighteen  years]  ;  or  that  at  the  commencement  of  this  ac- 
tion the  plaintiff  was  not  of  the  age  of  [twenty-one]  years,  and 
has  no  guardian  appointed  herein. 

No.  743. — Answer — As  to  Installment. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  to  the  last  installment  mentioned  in  the  complaint  the  de- 
fendant alleges  that  after  the  alleged  lease  was  made  [or  after 


AxswKR— Plkadin'CS.  461 

the  aUci^ed  letting],  and  before  said  installment  became  due,  the 
plaintiff  evicted  him  from  the  premises,  and  has  ever  since  kept 
liim  out  of  the  possession  thereof. 


No.  744. — Answer — Av/ard,  Invalidity  of. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  by  the  terms  of  the  agreement  referred  to  in  the  com- 
plaint, the  arbitrators  were  to  hear  the  evidence  and  arguments 
of  both  parties  at  meetings  called  upon  notice  to  both,  but  that 
they  refused  to  hear  the  evidence  offered  by  defendant,  and  failed 
and  refused  to  give  defendant  notice  of  the  said  meetings,  or  any 
of  them. 

Wherefore,  etc.,  [judgment  may  be  demanded,  setting  aside 
the  award,  if  desired]. 

No.  745. — Answer — Judgment,  Fraud  in  Obtaining. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 
I.  That  after  the  commencement  of  the  action  mentioned  in 
the  complaint,  the  said  plaintiff  came  to  this  defendant,  and  with 
intent  to  deceive  him  and  prevent  him  from  defending  it,  falsely 
and  fraudulently  represented  [here  state  the  false  representations, 
detaiiing  the  fraud  fully  and  explicitly]. 

No.  746. — Answer — Judgment,  Invalidity  of. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 

1.  That  the  action  in  which  the  supposed  judgment  against 
him  was  alleged  to  have  been  recovered  arose  upon  an  alleged 
contract. 

2.  That  when  the  action  was  commenced,  this  defendant  was 
a  nonresident  of  the  state  of  California,  and  a  resident  of  Illinois. 

3.  That  he  never  appeared  in  that  action,  and  never  was  per- 
sonally served  in  the  state  of  California,  or  elsewhere,  with  sum- 
mons therein. 

4.  That  no  order  for  publication  of  the  summons  in  that  ac- 
tion was  ever  made  [or  state  other  facts  shounng  failure  to  obtain 
jurisdiction]. 


462  New  Book  of  Forms. 

No.  747. — Answer — Judgment,  Setting  up  a. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 

1.  That  the  defendant  on  the  sixth  day  of  June,  ipo6,  did  re- 
cover in  the  [state  the  court]  in  and  for  the  county  of  Napa, 
aforesaid,  a  judgment  against  the  said  A.  B.,  for  the  svun  of 
$12^,  his  debt,  and  $15,  his  costs,  in  said  action. 

2.  That  the  said  judgment  is  in  full  force  in  law,  and  wholly 
due  and  unpaid,  and  is  and  has  been  a  subsisting  lien  on  said 
premises  from  the  said  sixth  day  of  June,  igo6. 

No.  748. — Answer — Jurisdiction  of  the  Person,  Want  of. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  he  was,  at  the  commencement  of  this  action,  and  is  now, 
consul  of  Jtaly,  for  the  city  of  New  York,  duly  accredited  to  the 
President  of  the  United  States,  and  by  him  received  and  acknowl- 
edged as  such  [or  otherwisc\. 

No.  749. — Answer — The  Same — By  Foreign  Corporation. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 

1.  That  the  defendant  [foreign  corporation]  is  a  corporation 
created  by  the  laws  of  the  Kingdom  of  Prussia  [or  other  foreign 
government  or  country],  and  not  by  the  laws  of  this  state. 

2.  That  the  plaintiff  is  not  a  resident  of  this  state,  but  resides 
at  K.,  in  the  Kingdom  of  Prussia. 

3.  That  the  said  [here  state  the  facts  showing  that  the  cause  of 
action  arose  without  the  state,  and  is  not  upon  a  contract  made, 
executed,  or  delivered  in  this  state]. 

No.  750. — Answer — Jurisdiction  of  the  Subject,  Want  of. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 
That  the  supposed  cause  of  action  accrued  to  the  said  plain- 
tiff, if  at  all,  out  of  the  jurisdiction  of  this  court;  that  is  to  say, 
at  P.,  in  the  county  of  Butte,  and  not  at  R.,  in  the  county  of 
Yuba,  or  elsewhere  within  the  jurisdiction  of  this  court,  or  within 
the  said  last-named  county. 


Answer — Pleadings.  463 

No.  751. — Answer — Captain,  Justification  by. 
{Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

1.  That  as  to  the  alleged  assaulting,  beating,  and  ill-treating 
the  plaintiff,  the  defendant  was,  at  the  time  thereof,  captain  of 
the  ship  called  the  P.  D. 

2.  That  the  plaintiff  was  then  on  board  of  said  ship  as  a  sea- 
man [state  excuse  for  beating  him  such  as  mutiny,  etc.]. 

3.  Wherefore,  the  defendant,  for  the  preservation  of  the  peace, 
and  to  preserve  due  order  on  said  ship   [state  zvhat  was  done]. 

No.    752. — Answer — Justification,    Publication,   of. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint : 

1.  That  each  and  every  article  in  the  complaint  mentioned  as 
having  been  charged  by  the  defendant  to  have  been  stolen  by  the 
plaintiff,  had,  at  the  time  mentioned  in  the  complaint,  been  taken 
and  stolen  from  the  defendant. 

2.  That  the  defendant  is  informed  and  believes  that  the  plain- 
tiff has  been,  and  is,  guilty  of  each  and  every  charge  in  said  com- 
plaint alleged  to  have  been  made  against  her  by  the  defendant, 
and  that  whatever  the  defendant  has  said  of  or  concerning  the 
plaintiff,  she  has  said  in  the  full  belief  of  its  truth  and  verity, 
and  in  self-vindication  and  warning  to  others,  and  not  from  any 
motives  of  malice  toward  the  plaintiff. 

No.  753. — Answer — Justification,  Publication,  of. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 
That  the  charge  and  supposed  defamatory  words  in  the  com- 
plaint set  forth,  are  each  and  all  of  them  true. 

No.    754. — Answer — Justification,    Publication,    of. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

First — For  a  defense : 

That  the  publication  complained  of  was  true.  [//  the  alleged 
libel  was  not  specific  in  its  charges,  state  the  facts  upon  which  it 
xtKis  founded.] 

Second — As  mitigating  circumstances: 


464  Nkw  Book  of  Forms. 

1.  That  on  the  second  day  of  February,  igo6,  the  plaintiff  ac- 
cused one  B.  C.  of  burglary  at  P. 

2.  That  thereupon  an  officer  of  the  pohce  of  P.  took  the  said 
B.  C.  into  custody,  and  conducted  him  to  a  station-house. 

3.  That  while  at  the  station-house,  the  said  B.  C.  made  to  the 
captain  of  police  there  in  command  a  statement,  which  is  fairly 
and  truly  reported  in  the  publication  complained  of  [or  made  a 
statement  to  the  effect  that  the  robbery  with  which  he  was 
charged  was  planned  by  the  plaintiff,  and  was  effected  by  him 
and  the  plaintiff  in  concert ;  that  they  quarreled  over  the  division 
of  the  plunder,  and  that  thereupon  the  plaintiff  charged  him  with 
the  felony]. 

4.  That  afterward,  the  plaintiff  was  arrested  by  a  police  offi- 
cer, and  conveyed  before  /.  P.,  a  police  justice  of  the  city  of  P., 
and  held  to  bail  by  the  said  justice,  to  answer  the  charges  of  the 
said  B.  C. 

5.  That  the  publication  complained  of  contained  a  fair  and 
true  statement  of  the  preceding  circumstances. 

6.  That  it  was  published  in  a  newspaper  belonging  to  the  de- 
fendant, by  his  employees,  without  his  knowledge  or  consent. 

7.  That  the  persons  publishing  it  inserted  it  as  an  item  of 
public  news,  without  malice,  believing  the  same  to  be  true. 

No.    755. — Answ^er — Justification,   Publication,   of. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  the  complaint,  and  alleges: 

1.  That  on  the  twentieth  day  of  May,  1906,  at  P.,  an  action 
was  tried  in  the  superior  court  of  P.,  in  which  A.  B.  was  plam- 
tiff,  and  the  plaintiff  herein  was  defendant  [or  an  indictment  hav- 
ing been  found  against  the  plaintiff  for  libel,  he  was  tried  there- 
for in  the  superior  court;  or  otherwise,  as  the  case  may  he]. 

2.  That  the  article  published  in  the  defendant's  newspaper, 
mentioned  in  the  complaint,  was  a  fair  and  true  report  of  the  tes- 
timony of  one  of  the  witnesses,  named  B.  F.,  made  in  the  course 
of  the  said  trial. 

No.  756. — Answer — ^Justification — Publication  of  Privileged. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 

1.  That  at  the  time  of  publishing  the  words  mentioned  in  the 
complaint,  an  action  was  pending  in  the  superior  court  betweoi 
[the  parties  to  this  action]. 

2.  That  at  that  time  this  defendant  applied  to  B.  C,  the  judge 
of  the  said  court,  for  an  order  to  tcJie  the  deposition  of  A.,  and 


Answer — Pleadings.  465 

upon  his  application  presented  to  the  said  judge  an  affidavit  con- 
taining the  words  complained  of,  which  said  affidavit  was  per- 
tinent to  the  said  application. 

3.  That  the  defendant  did  not  in  any  other  way  publish  the 
said  words. 

No.  757. — Answer — Justification — Publication    of    Privileged. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 

1.  That  he  was,  at  the  time  of  uttering  the  words  mentioned 
in  the  complaint,  the  confidential  clerk  of  A.  B. 

2.  That  the  said  A.  B.  inquired  of  the  defendant  the  char- 
acter of  the  plaintiff,  with  a  view  of  employing  him  as  a  clerk  [or 
as  the  case  may  be],  and  the  defendant  then  stated  to  him  the 
matter  referred  to  in  the  complaint. 

3.  That  the  defendant  had  probable  cause  for  believing,  and 
did  believe,  the  same  to  be  true. 

No.  758. — Answer — Goods,  Lien  upon. 
[Title  of  Court  and  Cause.] 

1.  That  on  the  twenty-second  day  of  May,  ipo6,  the  plaintiff 
deposited  the  goods  mentioned  in  the  complaint  with  the  defend- 
ant for  storage,  agreeing  to  pay  for  the  same  one  dollar  per  ton 
per  month. 

2.  That  the  defendant  has  always  been,  and  still  is,  ready  and 
willing  to  deliver  the  said  goods  to  the  plaintiff,  upon  the  pay- 
ment of  the  storage  money  due. 

3.  That  the  plaintiff  has  not  paid  or  tendered  to  the  defendant 
the  storage  money  due. 

No.  759. — Answer — Services,  Lien  for. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 
T.     That  said  goods  were  manufactured  by  the  defendant,  as 
tailor,  and  that  he  detained*  them  by  virtue  of  his  lien  as  a  me- 
chanic and  the  manufacturer  thereof,  as  security  for  the  payment 
of  $100,  which  is  the  amount  due  him  from  the  the  plaintiff  for 
work  and  labor  in  manufacturing  them. 

2.  That  the  defendant  has  always  been,  and  still  is,  ready 
and  willing  to  deliver  the  said  goods  to  the  plaintiff  upon  receiv- 
ing the  said  amount. 

3.  That  the  plaintiff  has  not  paid  or  tendered  to  the  defend- 
ant the  said  amount  of  $100  due  thereoru 

New  Forms — 30 


466  New  Book  of  Forms. 

No.  760. — Answer — Defendant,  Marriage  of. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint:  * 

That  at  the  time  of  making  the  agreement  [or  of  the  delivery 

of  the  goods  mentioned  therein]   she  was  the  wife  of  /.  K. 

No.  761. — Answer — Defendant,  Marriage  of. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

1.  That  she  was,  at  the  commencement  of  this  action,  and 
still  is,  the  wife  of  A.  B.,  who  now  resides  at  P.,  with  this  de- 
fendant. 

2.  That  this  action  does  not  concern  her  separate  property,  or 
her  right  or  claim  to  the  homestead  property. 

No.  762. — Answer — Plaintiff,  Marriage  of. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  That  the  plaintiff  was,  at  the  commencement  of  this  action, 
and  still  is,  the  wife  of  one  A.  B.,  who  is  still  living  at  P.,  with 
this  plaintiff. 

2.  That  this  action  does  not  concern  her  separate  property,  or 
her  right  or  claim  to  a  homestead. 

No.  763. — Answer — Misjoinder. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

I.  That  A.  B.  is  improperly  joined  as  a  plaintiff  [or  defendant] 
in  this:  That  he  has  no  interest  in  the  subject  matter  in  contro- 
versy [or,  if  otherwise,  state  reasons^. 

No.  764. — Answer — Misnomer. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

I.  That  the  true  name  of  the  plaintiff  [or  of  defendant]  is  and 
ever  has  been  J .  U.  and  not  A.  B.,  in  which  name  he  sues  [or  is 
sued]. 


Answer — Pleadings.  467 

No.   765. — Answer — Mistake, 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  That  when  he  signed  the  note  therein  mentioned,  he  sup- 
posed it  to  be  for  [ofve  hundred]  dollars,  but,  by  mistake,  it  was 
drawn  for  [tzvo  hundred]  dollars. 

2.  That  he  received  no  consideration  for  more  than  [one  hun- 
dred]  dollars. 

No.   766. — Answer — Mitigation — Libel  of. 
[Title  of  Court  and  Cause.] 

And  in  mitigation  of  damages  to  which  the  plaintiff  might 
otherwise  appear  entitled  by  reason  of  the  publication  of  the 
said  supposed  libelous  article,  this  defendant  alleges  that  all  the 
matters  and  things  stated  under  the  second  defense  were,  on  the 
first  day  of  March,  IQ06,  at  P.,  currently  reported  and  believed 
in,  and  were  published  in  a  certain  newspaper,  called  the  News, 
published  in  P.,  and  were  so  communicated  to  this  defendant, 
and  were  published  by  him  as  matters  of  current  public  news, 
the  defendant  verily  believing  the  same  to  be  true. 

No.  767 — Answer — Mortgage  net  Assigned. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 
That  the  said  A.  B.,  did  not  by  deed  duly  executed,  convey  all 
his  right  or  title,  as  such  mortgagee,  in  and  to  the  said  prem- 
ises, in  manner  and  form  as  the  said  plaintiff  hath  in  his  said 
complaint  alleged,  or  at  all. 

No.  768. — Answer — Negligence,  Plaintiff's. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 
That  the  defendant  and  his  servants  exercised  due  care  and 
diligence  about  the  construction  of  the  said  building  [or  in  repair- 
ing said  street,  and  replacing  the  pavement  thereof;  or  in  guard- 
ing the  said  excavations  with  proper  bulwarks,  and  in  putting  up 
lights  during  the  night-time ;  or  otherwise,  according  to  the  alle- 
gations in  the  complaint],  and  that  said  injury  was  not  caused 
by  any  negligence  on  the  part  of  the  defendant  or  his  servants, 
but  was  owing  to  tlie  n^ligence  and  fault  of  the  plaintiff  him- 
self. 


468  New  Book  of  Forms. 

No.    769. — Answer — Negligence. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 
That  at  the  time  of  the  grievance  alleged  the  defendant  was 
not  the  owner,  and  had  not  the  possession  or  control  of  the  prem- 
ises in  which  said  hole  or  hatchway  was  [or  that  the  said  horse 
and  carriage  alleged  to  have  been  injured  were  not  the  property 
of  the  plaintiff]. 

No.    770. — Answer — Nonjoinder   of   Assignee. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 
That  after  the  execution  of  said  mortgage  in  the  complaint  de- 
scribed, and  on  the  fifth  day  of  September,  IQ06,  he,  by  deed  duly 
executed,  conveyed  said  mortgaged  premises  in  fee  to  one  R.  S., 
who  is  now  living  and  still  holds  said  title. 

No.  771. — Answer — Nonjoinder. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  That  the  goods,  wares  and  m.erchandise  described  in  the 
complaint  were  sold  by  plaintiff  and  one  C.  D.  as  partners,  under 
the  name  of  A.  B.  &  C.  D. 

2.  That  the  said  C.  D.  is  still  living. 

No.   772. — Answer — Nonjoinder. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

I.  That  A.  B.  and  C.  D.,  residing  at  P.,  are  tenants  in  com- 
mon with  the  plaintiff  in  said  lands,  and  necessary  parties  to  this 
action. 

No.   773. — Answer — Nonjoinder. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

I.  That  after  the  death  of  said  A.  B.,  and  on  or  about  the 
fifteenth  day  of  April,  jpo6,  letters  of  administration  were  duly 
issued  to  one  C.  D.,  together  with  the  plaintiff,  by  the  probate 
court  of  the  county  of  San  Diego,  and  said  C.  D.  thereupon  duly 
qualified  as  administrator,  and  as  such  entered  upon  the  duties 
of  his  trust,  and  still  is  such  administrator. 


Answer — Pleadings.  469 

No.  774. — Answer — Nonjoinder. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  That  the  supposed  contract  [or  other  cause  of  action]  men- 
tioned in  the  complaint  was  made  with  said  F.  B.,  plaintiff  [or 
defendant],  and  one  A.  B.,  jointly. 

2.  That  the  said  A.  B.  is  still  living. 

No.  775. — Answer — Overdrawing  by  Plaintiff's  Assent. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

That  he  denies  each  and  every  allegation  set  forth  in  the 
third  separate  cause  of  action  in  said  complaint,  relative  to  the 
alleged  misconduct  of  defendant,  and  his  alleged  acts  and  doings 
in  the  management  of  the  said  partnership  business,  except  the 
allegation  of  his  drawing  out  from  the  funds  of  said  copartner- 
ship more  than  his  portion  of  the  profits  thereof,  to  wit :  the  sum 
of  $287,  and  investing  the  same  in,  etc.;  and  as  to  such  allega- 
tion, defendant  alleges  and  states  that  it  was  done  with  the  full 
knowledge  of  said  plaintiff,  and  with  his  approbation  and  express 
assent 

No.  776. — Answer — Defendant,  Partnership  of. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 

1.  That  the  contract  set  forth  in  the  complaint  was  not  made 
by  him  individually,  but  by  him  and  one  R.  S.  jointly  as  partners, 
under  the  firm  name  [give  the  firm  name]. 

2.  That  the  said  R.  S.  is  still  living. 

No.   777. — Answer — Plaintiff,   Partnership   of. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 

1.  That  the  cause  of  action  set  forth  in  the  complaint  did  not 
accrue  to  the  plaintiff  individually,  but  to  the  plaintiff  and  one 
R.  S.,  under  the  firm  name  [givitig  name  of  Urm],  and  that  said 
partners,  as  such,  when  this  action  was  brought,  held  and  owned 
the  said  cause  of  action  jointly. 

2.  That  the  said  R.  S.  is  still  living. 


470  New  Book  of  Forms. 


No.    778. — Answer — Payment. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  on  the  twenty-first  day  of  February,  igo6,  at  P.,  he  paid 
to  the  plaintiff  the  money  demanded  in  the  complaint  [or  seventy- 
five  dollars,  on  account  of  the  demand  in  the  complaint]. 

No.   779. — Answer — Bill,   Payment  by. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  That  before  this  action  the  plaintiff  drew  his  bill  on  the  de- 
fendant for  the  amount  of  said  account  [or  other  indebtedness 
alleged],  dated  on  the  tzventy-first  day  of  April,  ipo6,  and  pay- 
able to  the  order  of  the  plaintifT  three  months  after  said  date; 
which  the  defendant  then  accepted. 

2.  That  the  plaintifif  received  said  acceptance  on  account  of 
said  indebtedness,  and  afterward,  and  before  the  same  became 
due  and  payable,  lost  the  same,  and  cannot  produce  it  to  the  de- 
fendant. 

No.  780. — Answer — Payment  Before  Indorsement. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  That  after  the  bill  mentioned  in  the  complaint  was  due,  to 
wit,  on  or  after  the  thirteenth  day  of  May,  igo6  [date  of  matur- 
ity], and  while  said  [drawer]  was  the  holder  thereof,  and  before 
this  action,  the  defendant  satisfied  and  discharged  the  principal 
and  interest  [and  damages]  due  on  said  bill,  by  payment  to  the 
said  [drawer]. 

2.  That  said  [drawer]  indorsed  said  bill  to  the  plaintifif  after 
said  payment  and  after  the  maturity  thereof. 

No.   781. — Answer — Payment  by   Note. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

That  on  the  twentieth  day  of  April,  ipo6,  at  P.,  at  the  request 
of  the  plaintiff,  he  made  his  promissory  note  to  one  C.  D.  for  one 
hundred  dollars,  in  discharge  of  the  indebtedness  stated  in  the 
complaint. 


Answer — Pleadings.  471 

No.  782. — Answer — Services,  Payment  in. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  That  after  the  said  promissory  note  became  payable,  and 
before  this  action,  to  wit,  on  the  twenty-second  day  of  April,  igo6, 
the  plaintiff  agreed  to  receive  and  the  defendant  agreed  to  render 
to  the  said  plaintiff  his  services  as  a  [teamster]  to  the  amount 
of  said  note. 

2.  That  defendant  afterward,  according  to  the  said  agreement, 
rendered  such  services  to  the  plaintiff,  to  the  full  amount  due  and 
payable  on  the  said  note. 

No.   783. — Answer — Payment,   and   Tender. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  [Allege  payment  of  part.] 

2.  That  on  the  twenty-seventh  day  'of  April,  ipo6,  at  P.,  he  ten- 
dered to  the  plaintiff  the  residue  of  said  claim,  to  wit,  the  amount 
of  $12 j,  etc.    [as  in  preceding  form]. 

No.  784. — Answer — Peace,  Acts  Done  to  Preserve, 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 

1.  That  the  defendant  did  not  strike  or  wound  the  plaintiff.' 

2.  That  at  the  time  mentioned  in  the  complaint  the  plaintiff 
made  an  assault  on  one  B.,  and  was  then  and  there  beating  him. 

3.  That  thereupon  the  defendant,  in  attempting  to  preserve 
the  peace,  and  prevent  the  plaintiff  from  further  so  doing,  gently 
laid  his  hands  upon  the  plaintiff,  by  which  plaintiff  suffered  no 
injury. 

4.  That  the  acts  above  mentioned  are  the  same  of  which  the 
plaintiff  complains. 

No.  785. — Answer — Defendant,  Performance  by. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

That  he  made  the  said  [articles]  furniture,  and  on  the  fifteenth 
day  of  May,  /pod,  delivered  the  same  to  the  plaintiff,  in  every 
respect  as  agreed. 


472  New  Book  of  Forms. 

No.   786. — Answer — Nonperformance,   Excuse   for. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint : 

1.  That  at  the  time  of  making  said  agreement,  the  plaintiffs 
agreed  with  this  defendant,  that  in  consideration  that  he  would 
deliver  to  them  at  their  store  in  P.  [state  ivhat],  they  the  said 
plaintiffs,  would  pay  this  defendant  [state  amount,  and  when  and 
where  to  he  paid]. 

2.  That  the  said  plaintiffs  failed  and  refused  to  pay  the  same 
on  the  delivery  of  said  articles  at  said  store. 

No.   787. — Answer — Misrepresentations,   Policy  Obtained  by. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint,  and  alleges: 
That  the  defendant  was  induced  to  subscribe  the  policy  and 
become  an  insurer,  as  alleged  in  the  complaint,  by  the  misrepre- 
sentation made  by  the  plaintiff  to  the  defendant  of  a  fact  then 
■  material  to  be  known  to  the  defendant,  and  material  to  the  risk 
of  the  said  policy ;  that  is  to  say  [state  misrepresentations] . 


No.  788. — Answer — Consent,  Transfer  Without. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 

1.  That  it  is  among  other  things  provided  by  said  insurance 
policy,  that  in  case  of  any  transfer  or  termination  of  the  interest 
of  the  insured,  either  by  sale  or  otherwise,  of  the  property  in- 
sured, without  the  consent  of  the  company,  the  policy  should 
from  thenceforth  be  void. 

2.  That  after  the  making  of  said  policy,  and  before  the  loss 
alleged,  the  interest  of  the  said  [insured]  in  said  [things  insured] 
was  terminated  and  transferred,  and  the  title  thereto  vested  in 
said  plaintiff,  without  the  consent  of  the  defendants. 

No.   789. — Answer — Nonpresentment,   Excuse  for. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  denies: 
That  any  search  was  made  when  the  said  bill  of  exchange  be- 
came due,  to  discover  the  residence  and  person  of  the  said  A.  B., 
at  P.,  or  elsewhere,  cr  at  all,  in  order  that  the  said  bill  might  be 
presented  to  the  said  A.  B.  for  payment. 


Answer — PlE-\dincs.  473 


No.  790. — Answer — Redemption,  Equity  of  not  Assigned. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  denies: 
That  the  said  A.  B.  did  convey  his  equity  of  redemption  in  and 

to  the  said  premises  in   said  complaint  described,  in  manner  or 

form  as  the  said  plaintiff  hath  in  his  said  complaint  alleged,  or 

in  any  manner,  or  at  all. 


No.  791. — Answer — Release. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

That  on  the  tzucnty-fourth  day  of  Af>ril,  ipo6,  at  P.,  the  plain- 
tiff, by  deed,  released  the  defendant  from  the  claim  set  up  in  the 
complaint. 


No.  792. — Answer — Entry,  Resistance  to. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  tlie  complaint: 
I  and  2.      [As  in  preceding  form.] 

3.  That  the  plaintiff  then  and  there,  with  force  and  violence, 
attempted  to  break  into  the  said  dwelling  [or  other  possession], 
without  the  leave  and  against  the  will  of  the  defendant. 

4.  fhat  the  defendant  thereupon,  in  order  to  preserve  the 
peaceable  possession  thereof,  resisted  the  plaintiff's  entrance,  and, 
in  doing  so,  necessarily  assaulted  and  beat  the  plaintiff,  as  he 
lawfully  might ;  and,  if  the  plaintiff  sustained  any  damage,  it  was 
occasioned  by  his  own  wrong. 

5.  That  the  acts  above  mentioned  are  the  same  of  which  the 
plaintiff  complains. 


No.    793. — Answer — Search-warrant,    Justification    of    Break- 
ing  Under, 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 
I.  That  at  the  time  mentioned  in  the  complaint,  one  A.  B.  was 
a  justice  of  the  peace  of  the  town  of  P.,  in  the  county  of  Ynba, 
and  was  authorized  to  issue,  and  did  issue,  a  warrant  in  writing, 
under  his  hand  and  seal,  directed  to  any  constable  of  the  said 
town,  reciting  that,  whereas,  information,  on  oath,  had  been 
given  to  him,  the  said  A.  B.,  a  justice  of  the  peace,  as  aforesaid, 


474  I^Ew  Book  of  Forms. 

bv  one  C.  D.,  of  P.,  that  [specify  the  goods]  had  lately  been  fe- 
loniously taken  and  carried  away  by  B.  P.,  from,  etc.  and  that 
the  said'  goods,  or  a  part  thereof,  were  then  concealed  in  a  cellar 
of  L.  M.,  at  P.,  and  the  said  justice  did,  in  and  by  the  said  war- 
rant, in  the  name  of  the  people  of  this  state,  command  and  au- 
thorize them,  the  said  constables,  or  any  of  them,  wnth  proper 
assistance,  in  the  daytime,  to  enter  into  the  cellar  of  the  said 
L.  M.,  at  P.,  and  there  diligently  search  for  the  said  goods,  and 
if  the  same  or  any  part  thereof  should  be  found,  then  the  said 
constables  were,  in  and  by  the  said  warrant,  likewise  commanded 
to  bring  the  same,  so  found,  together  with  the  said  L.  M.,  or  the 
person  in  whose  custody  the  same  should  be  found,  before  him, 
the  said  justice,  or  some  other  justice  of  the  peace  of  said 
town,  etc.,  to  be  dealt  with  as  the  law  directs. 

2.  That  said  warrant  was  delivered  to  G.  H.,  one  of  the  de- 
fendants, who  then  was  one  of  the  constables  of  the  said  town, 
to  be  executed  according  to  law,  by  virtue'  of  which  he  went  to 
the  cellar  of  the  said  L.  M.  mentioned  in  the  warrant,  and  which 
was  part  and  parcel  of,  and  belonging  to,  the  dwelling-house 
mentioned  in  the  complaint,  and  there,  finding  the  door  thereof 
shut  and  fastened,  did,  in  a  friendly  and  peaceab'.e  manner,  de- 
mand and  require  that  the  said  door  should  be  opened,  which 
was  then  and  there  refused ;  and  that  thereupon  the  said  G.  H., 
one  of  the  defendants,  in  order  to  execute  the  said  warrant,  did 
break  open  the  said  door,  doing  as  little  damage  as  possible,  and 
did  search  there  for  said  goods,  and  took  and  carried  away 
therefrom  [specify  the  goods],  being  part  of  the  said  goods  men- 
tioned in  the  said' warrant,  and  brought  the  same  before  the  said 
justice,  as  he  might  lawfully  do,  which  are  the  acts  of  which 
the  plaintiff  complains. 

No.  794. — Answer — Self-defense. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  the  plaintiff  first  assaulted  the  defendant,  who  thereupon 
necessarily  committed  the  acts  complained  of,  in  self-defense. 

No.    795. — Answer — Sheriff,   Justification   by. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 

1.  That  on  the  fifth  day  of  March,  1904,  one  /.  D.  was,  and 
from  thence  until  the  sixth  day  of  August,  1904,  remained,  the 
sole  owner  of  all  the  property  described  in  said  complaint. 

2.  That  on  the  tenth  day  of  March,  1904,  an  action  was  duly 
commenced  by  one  C.  D.  against  the  said  /.  D.,  in  the  superior 


Ansukr — Pi.r.ADixGS.  475 

court  of  the  county  of  Napa,  state  of  California,  to  recover  the 
sum  of  $550,  alleged  to  be  due  for  [state  object  of  action]. 

3.  That  on  the  said  date  a  summons,  in  due  form,  zi'as  issued 
in  said  last-named  action,  and  on  said  date  u'as  duly  served  upon 
said  J.  D.  by  the  defendant,  as  the  sheriff  of  the  county  of  Napa, 
by  delivering  to  him  personally  a  true  copy  thereof,  attached  to  a 
copy  of  the  complaint  herein,  at  the   [state  place]. 

4.  That  on  said  date  a  writ  of  attachment  was  duly  issued  in 
due  form  in  said  last-named  action,  after  the  issuance  of  the 
summons  therein,  and  placed  in  the  hands  of  the  defendant,  as 
sheriff,  as  aforesaid.  That  on  said  date  said  sheriff  delivered  a 
true  copy  of  said  writ  of  attachment  to  E.  F.,  in  whose  possession 
the  property  described  in  said  complaint  then  was,  together  zvith 
a  written  notice  signed  by  said  sheriff,  indorsed  on  said  copy  of 
said  writ  of  attachment,  and  directed  to  said  E.  F.,  notifying 
him  that  all  the  moneys,  goods,  credits,  effects,  debts  due  or  ozv- 
ing,  or  any  other  personal  property  in  his  possession,  or  under 
his  control,  belonging  to  said  J.  D.,  zvere  attached  by  virtue  of 
said  writ  of  attachment,  and  not  to  pay  over  or  transfer  the  same 
to  anyone  but  him,  the  said  sheriff. 

5.  That  thereafter,  and  on  the  Hfth  day  of  April,  1904,  judg- 
ment was  duly  made,  rendered,  and  entered  in  said  last-named 
action,  in  said  superior  court,  against  said  /.  D.,  and  in  favor  of 
said  C.  D.,  for  the  sum  of  $530. 

6.  That  on  the  fifteenth  day  of  April,  IQ04,  an  execution  was 
duly  issued  in  due  form  in  said  superior  court,  under  and  by 
virtue  of  said  judgment,  which  execution  was  on  said  last-men- 
tioned date  placed  in  the  hands  of  the  defendant  as  sheriff,  for 
service. 

7.  That  said  sheriff  executed  the  same  by  delivering  to  said 
E.  F.,  personally,  on  the  seventeenth  day  of  April,  IQ04,  at  P.,  a 
true  copy  of  said  execution,  and  a  notice  in  writing,  notifying 
said  C.  b.  that  all  moneys,  goods,  credits,  effects,  debts  due  or 
owing;  or  any  property  in  his  possession  or  under  his  control,  be- 
longing to  said  /.  D.,  were  levied  upon  by  virtue  of  said  writ  of 
execution  and  not  to  pay  over  or  transfer  the  same  to  anyone 
but  him,  the  said  sheriff,  and  by  delivering  to  the  said  /.  D., 
personally,  on  the  tiventy-sez'enth  day  of  April,  IQ04,  at  P.,  a 
true  copy  of  said  writ  of  execution  and  notice,  together  with  a 
description  of  the  property  levied  upon. 

8.  That  said  sheriff',  by  virtue  of  said  writ  of  execution,  duly 
levied  upon,  on  the  second  day  of  May,  1904,  all  the  right,  title, 
and  interest  of  said  /.  D.,  in  and  to  the  property  described  in  the 
complaint,  the  same  then  being  in  the  possession  of  said  E.  F.. 
and  being  the  sole  property  of  the  said  /.  D..  by  taking  all  of 
said  property  into  his  possession,  and  by  delivering  to  said  E.  F., 


476  New  Book  of  Forms. 

on  the  tcntJi  day  of  May,  ip04,  a  true  copy  of  said  writ  of  execu- 
tion, together  with  a  description  of  all  of  said  property,  and  a 
written  notice  that  said  property,  and  all  the  right,  title,  and  in- 
terest of  said  /.  D.  therein,  was  levied  upon,  and  by  delivering 
to  said  /.  D.  personally,  on  the  thirtieth  day  of  May,  1904,  at  P., 
a  true  copy  of  said  writ  of  execution,  description,  and  notice. 

9.  That  said  sheriff,  on  the  Urst  day  of  June,  1904,  duly  ad- 
vertised all  of  said  property,  in  accordance  with  lazv,  by  posting 
three  notices  of  sale,  particularly  describing  said  property,  in 
three  public  places  in  P.,  advertising  said  property  to  be  sold  at 
public  auction  in  viezv  thereof,  at  [state  place  of  sale],  on  August 
4,  1904,  betiveen  the  hours  of  9  A.  M.  and  4  P.  M.;  and  that  on 
said  day  all  of  said  described  property  was  by  said  sheriff,  at 
the  hour  of  ii  A.  M.,  and  at  the  place  aforesaid,  exposed  for  sale 
at  public  auction,  and  zvas  sold  in  separate  lots  or  parcels  to  the 
highest  and  best  bidders,  for  cash;  the  whole  thereof  being  sold 
for  the  sum  of  $399,  which  said  sum,  less  the  sum  of  $24,  sheriff's 
costs,  was,  on  the  seventh  day  of  August,  1904,  credited  on  said 
execution  and  judgment. 

10.  [Denies  that  plaintiff  was  the  otimer  or  in  possession  of 
said  property.] 


No,   796. — Answer — Slander  of  Title. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint : 

1.  'T^he  defendant  avers  that  the  words  charged  in  the  com- 
plaint to  have  been  spoken,  and  each  of  them,  were  and  are  true. 

2.  Defendant  denies,  that  by  the  words  alleged  in  the  com- 
plaint to  have  been  spoken  by  him,  the  plaintiff  was  injured  in 
any  manner,  or  to  any  amount  whatever. 

3.  And  the  defendant  denies  that  the  said  words  were  uttered 
maliciously. 

No.  797. — Answer — Frauds,   Statute  of. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  That  no  note  or  memorandum  in  writing,  expressing  the 
consideration,  was  ever  made  by  any  such  contract  as  is  alleged 
in  the  complaint,  or  of  any  contract  whatever  [or  state  other 
facts  as  they  exist]. 

2.  That  he  did  not  receive  any  part  of  the  goods,  wares,  or 
merchandise  mentioned  in  the  complaint. 

3.  That  he  did  not  pay  any  part  of  the  purchase  money. 


Answer — Pleadincs.  477 


No.  798. — Answer — Frauds,   Statute  of. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

That  plaintiff  ought  not  to  have  his  said  action ;  because  neither 
defendant,  nor  any  person  by  him  legally  authorized,  did  ever 
make  or  sign  any  contract  or  agreement  in  writing,  binding  this 
defendant  to  make  any  such  conveyance  of  the  said  premises  to 
the  plaintiff  as  he  has  in  said  complaint  demanded. 


No.  799. — Answer — Frauds,   Statute  of. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  although  the  said  agreement  by  its  terms  was  not  to  be 
performed  within  one  year  from  the  making  thereof,  neither  said 
agreement,  nor  any  note  or  memorandum  thereof  was,  or  is,  in 
writing,  and  subscribed  by  the  said  A.  B.,  who  is  sought  to  be 
charged  therewith,  or  by  his  lawful  agent,  or  by  any  other  person. 


No.   800. — Answer — Frauds,   Statute  of. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 
That  the  said  alleged  agreement  was  made  upon  consideration 
of  marriage,  and  that  neither  said  agreement  nor  any  note  or 
memorandum  thereof  was  ever  in  writing,  and  subscribed  by 
said  C.  D.,  who  is  sought  to  be  charged  therewith,  or  by  his 
lawful  agent,  or  at  all. 


No.  801. — Answer — Statute  of  Limitations. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

That  the  cause  of  action  set  forth  therein  did  not  accrue  within 
two  years  before  the  commencement  of  this  action. 


No.  802. — Answer — Statute  of  Limitations. 

[Title  of  Court  and  Cause.] 
The  defendant,  answering  the  complaint,  alleges: 
That  the  cause  of  action  stated  in  the  complaint  of  the  plaintiff 

herein  is  barred  by  the  provisions  of  the  iirst  siibdizision  of  sec- 


478  New  Book  of  Forms. 

tion  ^S9  of  the  Code  of  Civil  Procedure  of  this  state  \or  insert 
whatever  section  and  subdivision  may  be  applicable  to  the  cause  of 
acti-on]. 

No.  803. — Answer — Surrender. 

[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint: 

That  on  the  twelfth  day  of  May,  igo6,  he  surrendered  to  the 
plaintiff  the  premises  mentioned  in  the  complaint,  and  the  plain- 
tiff accepted  the  same. 

No.   804. — Answer — Suit,   Tender   Before. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  That  on  the  twenty-sixth  day  of  April,  igo6,  at  P.,  before 
the  commencement  of  this  action,  he  tendered  to  the  plaintiff  $ys 
[in  gold  and  silver  coin  of  the  United  States],  in  payment  of  the 
[contract,  note,  or  indebtedness]   in  the  complaint  set  forth. 

2.  That  the  defendant  has  always  been,  and  still  is,  ready  and 
willing  to  pay  the  same  to  the  plaintiff,  and  nov/  pays  the  same 
into  this  court  [or  state  the  facts]. 

No.  805. — Answer — Term  not  Expired. 
[Title  of  Court  and  Cause.] 

The  defendant  answers  to  the  complaint : 

That  the  partnership  between  him  and  the  plaintiff,  set  forth 
in  the  complaint,  was  not  upon  the  terms  and  according  to  the 
stipulations,  agreements  or  covenants  alleged  by  plaintiff  in  his 
said  complaint ;  but,  on  the  contrary,  that  said  partnership  was 
formed  and  entered  into,  and  carried  on,  under  and  in  pursuance 
of  a  written  agreement  and  articles  of  copartnership  between 
him  and  said  plaintiff,  a  copy  of  which  is  hereto  annexed,  and 
forms  a  part  of  this  answer,  showing  that  the  time  for  the  con- 
tinuance of  said  copartnership  is  not  yet  expired,  which  agree- 
ment has  never  been  altered  or  varied  in  writing  or  by  parol ; 
and  that  the  copartnership  formed  and  carried  on  in  pursuance 
thereof  is  the  same  set  forth  and  alleged  in  said  complaint. 

No.  806. — Answer — Trespass,  Justifying. 

[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 
I.     That  the  plaintiff  and  defendant  occupy  farms  contiguous 

to  each  other,  and  separated  by  a  fence  which  the  plaintiff  was 


Answer — Pi.kadings.  479 

bound  to  keep  in  repair.  The  plaintiff  neglected  to  keep  the 
fence  in  repair,  by  means  whereof  the  cattle  of  the  defendant 
escaped  over  the  fence  and  onto  the  premises  of  the  plaintiff,  and 
thereby  the  defendant  committed,  by  his  cattle  and  without  his 
fault,  the  supjiosed  injury  set  forth  in  the  complaint  as  done  by 
the  defendant's  cattle. 

2.  That  the  defendant,  as  soon  as  he  had  notice  of  the  escape 
of  his  cattle,  entered  upon  the  plaintiff's  premises  to,  and  did, 
drive  them  out,  doing^  no  unnecessary  damage,  which  is  the  al- 
leg-ed  trespass  committed  by  the  defendant,  as  set  forth  in  the 
complaint. 

No.  807. — Answer — Trespass,  Justifying. 
[Title  of  Cdurt  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  That  at  the  time  mentioned  in  the  complaint  the  defendant 
was  sheriff  of  the  county  of  Butte,  in  this  state,  duly  elected  and 
qualified  as  such. 

2.  That  in  an  action  brought  by  one  M.  N.  against  one  O.  P., 
in  the  court  of  Butte  county,  to  recover  the  possession  [aniojig 
other  things]  of  the  property  mentioned  in  the  complaint  in  this 
action,  said  M.  N.  delivered  to  this  defendant  an  affidavit  made 
by  him  [or  made  in  his  behalf],  and  a  notice  indorsed  thereon, 
describing  the  property  mentioned  in  the  complaint,  and  requir- 
ing this  defendant  to  take  the  same  from  said  O.  P.,  and  deliver 
it  to  said  M.  A^.:  and  at  the  same  time  delivered  to  this  defend- 
ant, as  such  sheriff,  a  written  undertaking  as  required  bv  law  in 
such  case,  of  which  affidavit,  notice,  and  undertaking  copies  are 
hereto  annexed  as  part  of  this  answer. 

3.  That  by  virtue  of  said  proceedings  the  defendant  took  and 
detained  the  goods  mentioned  in  the  complaint,  which  are  the 
acts  of  which  the  plaintiff  complains. 


No.   808. — Answer — Ultra   Vires. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 

1.  That  the  plaintiff  was  not  and  is  not  authorized  by  law  to 
take,  hold,  and  convey  real  property,  except  for  the  following 
purposes,  and  in  the  following  manner:  [here  set  forth  tJie  pozver 
of  the  corporation.] 

2.  That  the  deed  alleged  in  the  complaint  was  executed  and 
accepted  on  the  part  of  said  corporation,  for  tlie  purpose  of  [here 
state  purpose  not  zcithin  the  power]. 


480  New  Book  of  Forms. 

No.  809. — Answer — Unseaworthiness. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint,  and  alleges: 

1.  [Allege  provisions  of  policy  unless  it  appears  by  the  com- 
plaint.'] 

2.  That  at  P.,  and  in  the  course  of  said  voyage,  and  in  refer- 
ence to  the  said  voyage,  and  to  any  damage  which  the  said  ship 
sustained  in  the  prosecution  thereof,  a  regular  survey  was  had  on 
the  sixth  day  of  May,  igo6,  upon  which  survey  the  said  ship  was 
thereby  declared  unseaworthy,  by  reason  of  her  being  rotten  [or 
state  particulars  shozving  a  ground  of  condemnation  wholly 
within  the  provisions  of  the  policy]. 

No.  810. — Answer — Usury. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  That  the  note  mentioned  therein  was  given  to  the  plaintiff 
in  pursuance  of  a  mutual  agreement,  between  the  plaintiff  and 
defendant,  that  the  plaintiff  should  lend  the  defendant  money  at 
the  rate  of  ten  per  centum  per  annum. 

2.  That  the  defendant  received  from  the  plaintiff  $200  only  as 
a  consideration  for  the  said  note,  the  plaintiff  retaining  $10  as 
interest  thereon. 

No.  811. — Answer — Warranty,  Breach  of. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  That  the  said  note  was  not,  before  it  became  due,  trans- 
ferred and  delivered  to  the  plaintiff  for  value. 

2.  That  the  said  note  was  made  and  delivered  by  the  defendant 
to  one  A.  B.,  who  was  at  that  time  an  agent  or  servant  of  the 
plaintiff,  and  acting  as  such  on  behalf  of  the  plaintiff  in  that 
transaction,  in  exchange  for  a  quantity  of  cigars,  which  were  sold 
by  sample  to  the  defendant  at  that  time  by  said  A.  B.,  as  such 
agent. 

3.  That  when  said  cigars  were  delivered  to  this  defendant,  they 
did  not  correspond  with  the  samples,  and  were  not  worth  more 
than  $200. 

4.  That  as  soon  as  the  defendant  learned  the  character  of  said 
cigars,  he  offered  to  said  A.  B.,  as  such  agent,  to  return  them, 
which  he  is  still  ready  and  willing  to  do. 

Wherefore,  the  defendant  claims  to  recoup  $150,  his  damages 
in  this  behalf,  from  the  amount  of  the  said  note. 


Answer — Pleadings.  481 


No.  812. — Answer — Warranty,  Breach  of,  by  Plaintiff. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  That  the  goods  therein  mentioned  were  warranted  by  the 
plaintiff  to  be  genuine  French  broadcloth. 

2.  That  they  were  not  genuine  French  broadcloth. 


No.   813. — Answer — Warranty,  Breach  of. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  That  the  plaintiff  warranted  the  property  therein  mentioned 
to  be  free  from  encumbrances. 

2.  That  there  was  then,  and  still  is,  a  mortgage  on  the  same, 
in  the  sum  of  $2^0,  unsatisfied,  of  record  in  Book  B,  page  ip,  of 
Mortgages,  in  the  office  of  the  recorder  of  the  county  of  Yolo, 
in  this  state,  and  the  same  then  was  and  still  is  a  valid  and  sub- 
sisting lien  and  encumbrance  upon  the  said  premises. 

No.   814. — Answer — Quality,   Breach  as  to. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1 .  That  it  was  a  part  of  the  agreement  referred  to  in  the  com- 
plaint that  the  wheat  therein  mentioned  should  be  of  a  first-class 
milling  quality. 

2.  That  the  said  wheat  was  not  of  a  first-class  milling  quality, 
but  [state  wherein  the  quality  was  defective]. 

No.  815. — Answer — Work  not  Finished. 
[Title  of  Court  and  Cause.] 
The  defendant  answers  to  the  complaint: 

1.  That  the  said  work  was  not  completed  in  a  good  and  work- 
manlike manner,  on  or  before  the  day  limited  therefor  in  the 
contract  set  forth  in  the  complaint ;  but  on  the  contrary,  the 
said  work  on  that  day,  and  from  thence  to  the  commencement 
of  this  action,  was,  and  still  is,  incomplete  and  unfinished. 

2.  That  no  certificate  from  the  said  architect,  that  the  said 
work  has  been  completed  to  his  satisfaction,  was  obtained  by  the 
plaintiff  before  this  action. 

New  Forms — 31 


4S2  New  Book  of  Forms. 


ATTORNEY. 


No.  8i6. — Attorney — Substitution  of. 

[Title  of  Court  and  Cause.] 

I  hereby  substitute  Messrs.  McA.  and  B.  attorneys  for  the 
plaintiff  in  the  above-entitled  action  in  my  place  and  stead. 

NOTE.— California  C.   C.  P.,   sees.   281-286. 

Hcj,   817. — Attorney — Acceptance   of   SubstitiUion. 

[Title  of  Court  and  Cause.] 

You  will  please  take  notice  hereby,  that  we  accept  the  sub- 
stitution of  ourselves  attorneys  for  the  plaintiff  in  the  above- 
entitled  action  in  your  place  and  stead. 


f^o.     B18. — Attorney,      Appointment     of— Inheritances — Tix 

Lavi/. 

Know  all  Men:  That  I,  A.  B.,  county  treasurer  of  Shasta 
county,  state  of  California,'^  under  and  by  authority  of  an  act  of 
the  legislature  of  the  state  of  California  entitled  "An  act  to  es- 
tablish a  tax  on  gifts,  legacies,  inheritances,  bequests,  devises, 
successions,  and  transfers,  to  provide  for  its  collection,  and  to 
direct  the  disposition  of  the  proceeds,"  approved  March  20,  IQ05, 
I  hereby  appoint  C.  D.  B.,  attorney  at  law,  admitted  to  practice 
in  the  supreme  court  of  said  state,  as  attorney  for  me.  As  such 
treasurer  he  to  have  all  the  authority  given  by  said  act  to  the 
district  attorney  of  the  several  counties  of  said  state  to  com- 
mence and  prosecute  in  the  superior  court  failures  to  pay  the 
taxes  described  in  said  act. 


•Aet  of  March  20,  1905;  Stats.,  p.  341,  see.  23. 


Bond — Undertaking — Bail.  483 


BOND— UNDERTAKING— BAIU 


No.  819. — Condition  of  Bond  for  a  Clerk's  Fidelity. 

Whereas  the  above-named  A.  A.  hath  taken  the  above-bounden 
B.  B.  into  his  service,  to  be  a  clerk,  to  do  all  things  in  his  power, 
incident  to  the  business  of  a  clerk:  Now,  the  condition  of  this 
oblig-ation  is  such,  that  if  the  said  B.  B.  shall  not  at  all  times  so 
long  as  he  shall  be  employed  in  the  service  of  the  said  A.  A.  as 
his  clerk,  well,  faithfully,  and  truly  serve  the  said  A.  A.  without 
consuming,  wasting,  embezzling,  losing,  misspending,  misapply- 
ing, or  unlawfully  making  away  with  any  of  the  moneys,  goods, 
chattels,  wares,  merchandises,  or  effects  whatsoever  of  the  said 

A.  A.,  or  of  any  other  person  or  persons  whatsoever  (for  which 
the  said  A.  A.,  his  heirs,  executors,  or  administrators,  shall  or 
may  by  any  law,  custom,  or  usage  whatsoever,  be  in  any  wise 
answerable),  which  shall  be  committed  to  his  the  said  B.  B.'s 
care,  by  reason  of  his  being  clerk  as  aforesaid,  and  if  the  said 

B.  B.  shall  at  any  time,  during  the  time  of  his  being  clerk  as 
aforesaid  to  the  said  A.  A.,  neglect  or  refuse  to  account  with 
the  said  A.  A.  weekly  or  oftener,  if  thereunto  required  by  the 
said  A.  A.,  then  if  the  said  B.  B.  or  £.  £.  (the  surety)  or  either 
of  them,  or  their,  or  either  of  their  heirs,  executors^  or  admin- 
istrators, without  any  notice  thereof  shall  make  recompense,  sat- 
isfaction and  payment  unto  the  said  A.  A.,  his  executors,  or  ad- 
ministrators, for  the  said  m.oneys,  goods,  chattels,  wares,  merchan- 
dises, or  effects  of  him  the  said  A.  A.,  so  lest,  wasted,  spent  or 
misapplied  as  3 foresaid;  and  also  for  all  such  loss,  damage,  or 
charge  as  he.  the  said  A.  A.,  his  executors  or  administrators, 
shall  suffer  or  sustain,  by  reason  or  means  of  his  the  said  B.  B.'s 
neglecting  or  refusing  to  account  as  aforesaid  ;  then  this  bond  to 
be  void,  otherwise  to  be  in  full  force  and  effect. 


No.  820. — Bond  (Undertaking)  on  Qualifying — Administrator. 

[Title  of  Court  and  Estate.] 

Know  all  Men  by  these  Presents:  That  we,  H.  J.,  prin- 
cipal, and  /.  S.,  and  /.  B.,  sureties,  are  held  and  jointly  and  sev- 
erally firmly  bound  to  the  state  of  California  in  the  sum  of  ten 
thousand  seven  hundred   dollars,   lawful   money   of  the   United 


484  Nkw  Book  of  Forms. 

States  of  America,  to  be  paid  to  the  said  state  of  Calif ornia,  for 
which  payment,  well  and  truly  to  be  made,  we  bind  ourselves, 
our  and  each  of  our  heirs,  executors  and  administrators,  jointly 
and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals,  and  dated  this  sixteenth  day  of  June, 
ipo6. 

The  condition  of  this  obligation  is  such,  that  whereas,  by  an 
order  of  the  superior  court  of  the  city  and  county  of  San  Fran- 
cisco, state  aforesaid,  duly  made  and  entered  on  the  fifteenth  day 
of  June,  igo6,  the  above-bounden  H.  J .,  in  the  matter  of  the  es- 
tate of  T.  J.,  deceased,  was  appointed  administrator  of  the  estate 
of  [or,  executor  of  the  last  zvill  and  testament  o/]  said  T.  J.,  de- 
ceased, and  letters  of  administration  were  directed  to  be  issued  to 
him  upon  his  executing  a  bond  according  to  law,  in  the  said 
sum  of  ten  thousand  seven  hundred  dollars. 

Now,  therefore,  if  the  said  JJ.  J.,  as  such  administrator  [or 
executor],  shall  faithfully  execute  the  duties  of  the  trust  accord- 
ing to  law,  then  this  obligation  to  be  void;  otherwise  to  remain 
in  full  force  and  effect. 

NOTE.— California,  C.  C.  P.,  sees.  1387-1407;  Alaska,  Codes,  pt.  4,  c. 
81,  sec.  777;  Arizona,  C.  C,  par.  1666;  Idaho,  C.  C.  P.,  sec.  1387;  Mon- 
tana, C.  C.  P.,  sec.  2470;  New  Mexico,  Comp.  Laws,  sec.  1944;  North 
Dakota,  Probate  Code,  sees.  6347-6352;  South  Dakota,  Probate  Code, 
.sees.  101-107;  Utah.  Rev.  Stats.,  see.  3868;  Washington,  Ballinger's 
Codes,  see.  6137;  Wyoming,  Rev.  Stats.,  sec.  4875. 


No.  821. — Bond  (Undertaking) — Administrator — Sale  of  Real 

Estate. 

[Title  of  Court  and  Estate.] 

Know  all  Men  by  these  Presents:  That  we,  M.  J.,  as  prin- 
cipal, and  /.  D.  and  R.  D.,  as  sureties  are  held  and  firmly  bound 
to  the  state  of  California,  in  the  sum  of  five  thousand  dollars 
lawful  money  of  the  United  States  of  America,  to  be  paid  to  the 
said  state  of  California,  for  which  payment,  well  and  truly  to  be 
made,  we  bind  ourselves,  our  and  each  of  our  heirs,  executors, 
and  administrators,  jointly  and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals,  and  dated  this  thirtieth  day  of  Decem- 
ber, ipo6. 

The  condition  of  the  above  obligation  is  such,  that  whereas  an 
order  was  made  on  the  seventh  day  of  December,  igo6,  by  the 
superior  court  of  the  city  and  county  of  San  Francisco,  state  of 
California,  authorizing  the  above-named  principal,  as  administra- 
trix of  the  estate  of  T.  J.,  deceased,  to  sell  certain  real  estate  be- 
longing to  the  estate  of  said  deceased,  and  requiring  that  an  ad- 


Bond — Undertaking — P.ail.  4^5 

ditional  bond  be  executed  by  said  administratrix  in  the  sum  above 
named. 

Now,  therefore,  if  the  said  M.  J.,  as  such  administratrix,  shall 
faithfully  execute  the  duties  of  the  trust  according  to  law,  then 
this  obligation  to  be  void,  otherwise  to  remain  in  full  force  and 
effect. 

NOTE. — In  California  if  the  bond  jriven  upon  qualifying  is  not  equal 
to  twice  the  value  of  the  personal  property  remaining  in,  or  that  will 
come  into,  the  possession  of  the  executor,  including  the  annual  rents, 
profits,  and  issues  of  real  estate,  and  twice  the  probable  amount  to  be 
realized  on  the  sale  of  the  real  estate  ordered  to  be  sold,  then  the  court 
may  require  a  new  bond  whenever  the  sale  of  real  estate  is  ordered:  <'. 
C.  P.,  sees.  13S9,  1390;  Alaska,  Codes,  pt.  4,  c.  81,  sec.  777;  Arizona, 
C.  C,  par.  1669;  Idaho,  C.  C.  P.,  sec.  4064;  Montana,  C.  C.  P.,  sec.  2473; 
Nevada,  Comp.  Laws,  sec.  2840;  New  Mexico,  Comp.  Laws,  sec.  2007- 
2009;  North  Dakota,  Probate  Code,  sees.  6347-6352;  South  Dakota,  Pro- 
bate Code,  sees.  101,  102;  Utah,  Rev.  Stats.,  sec.  3829;  Washington, 
Ballinger's  Codes,  sec.  6148;  Wyoming,  Rev.  Stats.,  sec.  4664. 


No.   822. — Bond    (Undertaking) — Administrator,    Special. 

[Title  of  Court  and  Estate.] 

Know  all  Men  by  these  Presents:  That  we,  /.  IV.  as  prin- 
cipal and  /.  D.  and  R.  R.  as  sureties,  are  held,  jointly  and  sever- 
ally, firmly  bound  to  the  state  of  California  in  the  sum  of  ten 
thousand  dollars,  lawful  money  of  the  United  States  of  America, 
to  be  paid  to  the  said  state  of  California,  for  which  payment,  well 
and  truly  to  be  made,  we  bind  ourselves,  our  and  each  of  our 
heirs,  executors,  and  administrators,  jointly  and  severally,  firmly 
by  these  presents. 

Sealed  with  our  seals,  and  dated  this  tenth  day  of  May,  ipo6. 

The  condition  of  the  above  obligation  is  such,  that  whereas, 
/.  W.  has  been  appointed  special  administrator  of  the  estate  of 
H.  IV.,  deceased:  Now,  therefore,  if  the  said  /.  IV.  shall  faith- 
fully execute  the  duties  of  his  trust  according  to  the  law,  then 
this  obligation  to  be  void,  otherwise  to  remain  in  full  force  and 
effect. 

NOTE. — In  California  the  special  administrator  must  give  the  usual 
bond  in  an  amount  as  directed  by  the  court  and  he  "must  take  tlte 
usual  oath^'  and  have  it  indorsed  on  his  letters:   C.  C.  P.,  sec.  1414. 

This  last  requirement  is  a  fair  specimen  of  careless  code  forming. 
Why  should  the  usunl  oath  of  a  special  administrator  be  indorsed  on 
his  letters,  while  the  oath  of  the  permanent  administrator  must  be 
attached  to  his  letters?  Id.,  sec.  1387;  Alaska,  Codes,  pt.  4,  c.  81,  sec. 
777;  Arizona,  C.  C.  par.  1666;  Idaho,  C.  C.  P.,  sec.  1387;  Montana,  C. 
C.  P.,  sec.  2470;  New  Mexico,  Comp.  Laws,  sec.  2060;  North  Dakota, 
Probate  Code,  sees.  6347-6352;  South  Dakota,  Probate  Code,  sees.  119- 
125;  Utah,  Rev.  Stats.,  sec.  3868:  Washington,  BaUinge? 'a  Codes,  sec. 
6137;  Wyoming,  Rev.  Stats.,  sec.  4875. 


4^6  New  Book  of  Forms. 

No.   823. — Bond    (Undertaking) — ^Administrator,   to,   and   In- 
terested Persons  upon  Sale  of  Contract  for  Purchase  of 
Lands. 
[Title  of  Court  and  Cause.] 

We,  the  undersigned,  are  hereby  bound  to  A.  B.,  administrator 
of  the  estate  of  C.  D.,  deceased,  and  to  E.  F.,  the  only  child  of 
said  deceased  and  his  only  heir  at  law,  and  the  only  person  inter- 
ested in  said  estate,  in  the  sum  of  $10,000,  which  we  obligate  our- 
selves, and  each  of  us,  to  pay  upon  the  following  terms  and 
conditions : 

At  the  time  of  his  death,  the  said  deceased  was  possessed  of  a 
contract  to  purchase  of  G.  H.  all  that  land  described  as  follows : 
[description]  ;  and  whereas  the  said  contract  has  by  order  of 
said  court  been  sold  to  L.  J.,  and  the  sale  to  him  will  be  confirmed 
upon  his  executing  a  bond  to  said  administrator  for  his  benefit 
and  indemnity  of  himself  and  of  the  persons  entitled  to  the  in- 
terest of  the  decedent  in  the  lands  so  contracted  for  in  the  sum 
of  $20,000,  being  double  the  whole  amount  of  payments  there- 
after to  become  due  on  such  contract. 

Now,  if  the  said  L.  J.  will  well  and  truly  pay  to  said  G.  H.  the 
balance  of  the  total  amount  due  the  said  G.  H.  upon  said  con- 
tract that  becomes  due  after  the  date  of  sale,  to  wit,  June  3, 
igo6,  and  will  fully  indemnify  the  administrator  and  the  persons 
so  entitled  against  all  demands,  costs,  charges  and  expenses  by 
reason  of  any  covenant  or  agreement  contained  in  said  contract, 
then  this  obligation  to  be  void,  otherwise  it  is  to  remain  in  full 
force. 

A  copy  of  said  contract  is  attached  to  this  bond  as  a  reference. 

NOTE.— California,  C.  C.  P.,  sees.  1565-1568;  Alaska,  Codes,  pt.  4,  c. 
?1,  see.  777;  Arizona,  C.  C,  par.  1804;  Idaho,  C.  C.  P.,  sec.  4199;  Mon- 
tana, C.  C.  P.,  sec.  2697;  Nevada,  Comp.  Laws,  see.  2939;  New  Mexico, 
Comp.  Laws,  sees.  2007-2009;  North  Dakota,  Probate  Code,  sec.  6448; 
Oregon,  Codes  and  Stats.,  sec.  1185;  South  Dakota,  Probate  Code,  sec. 
230;  Utah,  Rev.  Stats.,  sec.  3902;  Washington,  Ballinger's  Codes,  sec. 
6283;  Wyoming,  Rev.  Stats.,  see.  4805. 

No,  824. — Bond  (Undertaking) — ^Appeal  from    Money    Judg- 
ment. 
[Title  of  Court  and  Cause.] 

Whereas,  the  defendants  in  the  above-entitled  action  have  ap- 
pealed to  the  supreme  court  of  the  state  of  California  from  a 
judgment  made  and  entered  against  them  in  said  action,  in  said 
superior  court,  in  favor  of  the  plaintiff  in  said  action,  on  the 
twenty-fourth  day  of  January,  igo6,  for  seven  hundred  and  fifty 
dollars,  gold  coin  of  the  United  States,  and  fifty  dollars  costs  of 
suit,  and  from  the  zvhole  thereof ;  and  also  from  the  order  re- 
fusing said  defendants  a  iiew  trial,  made  and  entered  in  the  min- 
utes of  said  court,  April  4,  igo6. 


Bond — Undertaking — Bafl,  4S7 

Now,  therefore,  in  consideration  of  the  premises,  and  of  such 
appeal,  we,  the  undersigned,  residents  of  the  city  and  county  of 
San  Francisco,  do  hereby  jointly  and  severally  undertake  and 
promise,  on  the  part  of  the  appellants,  that  the  said  appellants 
will  pay  all  damages  and  costs  which  may  be  awarded  against 
them  on  the  appeal,  or  on  a  dismissal  thereof,  not  exceeding  tlirer 
hundred  dollars,  to  which  amount  we  acknowledge  ourselves 
jointly  and  severally  bound. 

And  whereas,  the  appellants  are  desirous  of  staymg  the  execu- 
tion of  said  judgment  so  appealed  from,  we  do  further,  in  con- 
sideration thereof,  and  of  the  premises,  jointly  and  severally 
undertake  and  promise,  and  do  acknowledge  ourselves  further 
jointly  and  severally  bound  in  the  further  sum  of  one  thousand 
six  hundred  (1,600)  dollars,  gold  coin  of  the  United  States  (being 
double  the  amount  named  in  the  said  judgment),  that  if  the  said 
judgment  appealed  from,  or  any  part  thereof,  be  affirmed,  or 
the  appeal  be  dismissed,  the  appellant  will  pay,  in  United  States 
gold  coin,  the  amount  directed  to  be  paid  by  the  said  judgment, 
or  the  part  of  such  amount  as  to  which  the  said  judgment  shall 
be  affirmed,  if  affirmed  only  in  part,  and  all  damages  and  costs 
which  may  be  awarded  against  the  appellants  upon  the  appeal ; 
that  if  the  appellants  do  not  make  such  payment  within  thirty 
(30)  days  after  the  filing  of  the  remittitur  from  the  supreme 
court  in  the  court  from  which  the  appeal  is  taken,  judgment 
may  be  entered  on  motion  of  the  respondent,  in  his  favor  against 
the  undersigned  sureties,  for  said  sum  of  $800,  together  with  the 
interest  that  may  be  due  thereon,  and  the  damages  and  costs 
that  may  be  awarded  against  the  appellant  upon  the  appeal. 

NOTE. — In  California  the  undertaking  on  appeal  must  be  in  writ- 
ing, on  the  part  of  the  appellant,  by  at  least  two  sureties,  that  the  ap- 
pellant will  pay  all  damages  and  costs  which  may  be  awarded  against 
him  on  appeal,  or  on  a  dismissal  thereof,  not  exceeding  three  hun- 
dred dollars;  or  that  sum  must  bo  deposited  with  the  clerk  with  whom 
the  judgment  pr  order  was  entered,  to  abide  the  event  of  the  appeal: 
C.  C.  P.,  sec.  941. 

If  the  appeal  be  from  a  judgment  or  order  directing  the  payment 
of  money,  it  does  not  stny  the  execution  of  the  judgment  or  order  un- 
less a  written  undertaking  be  executed  on  the  part  of  the  appellant, 
by  two  or  more  sureties,  to  the  effect  that  they  are  bound  in  double 
the  amount  named  in  the  judgment  or  order;  that  if  the  judgment  or 
order  appealed  from,  or  any  part  thereof,  be  affirmed,  or  the  appeal 
be  dismissed,  the  appellant  will  pay  the  amount  directed  to  be  paid 
by  the  judgment  or  order,  or  the  part  of  such  amount  as  to  which  the 
judgment  or  order  is  affirmed,  if  affirmed  only  in  part,  and  all  damages 
and  costs  which  may  be  awarded  against  the  appellant  upon  the  ap- 
peal, and  that  if  the  appellant  does  not  make  such  payment  within 
thirty  days  after  the  filing  of  the  remittitur  from  the  supreme  court  in 
the  court  from  which  the  appeal  is  taken,  judgment  may  be  entered 
on  motion  of  the  respondent  in  his  favor  against  the  sureties,  for  such 
amount,  together  with  the  interest  that  may  be  due  thereon,  and  tlie 
damages  and  costs  which  may  be   awarded   against  the  appellant   upon 


488  New  Book  of  Forms. 

the  apppal.  Tf  the  .indgment  or  order  appealed  from  be  for  a  greater 
amount  than  two  thousand  dollars,  and  the  sureties  do  not  state  in 
their  affidavits  of  .justification  accompanying  the  undertaking  that  they 
are  each  -worth  the  sum  specified  in  the  undertaking,  the  stipula- 
tion may  be  that  the  judgment  to  be  entered  against  the  sureties  shall 
be  for  such  amounts  only  as  in  their  affidavits  they  may  state  that 
they  are  severally  worth,  and  judgment  may  be  entered  against  the 
sureties  by  the  court  from  which  the  appeal  is  taken,  pursuant  to  the 
stipulations  herein  designated.  When  the  judgment  or  order  appealed 
from  is  made  payable  in  a  specified  kind  of  money  or  currency,  the 
judgment  entered  against  the  sureties  upon  the  undertaking  must  be 
made  payable  in  the  same  kind  of  money  or  currency:  Id.,  sec.  942; 
Alaska,  Codes,  pt.  4,  c.  51,  see.  508;  Arizona,  C.  C,  par.  1511;  Idaho, 
C.  C.  P.,  sec.  3576;  Montana,  C.  C.  P.,  sec.  1726;  Nevada,  Comp.  Laws, 
sec.  3437;  New  Mexico,  Comp,  Laws,  sec.  3136;  North  Dakota,  C.  C, 
sees.  5608,  5610,  5617-5622;  Oregon,  Codes  and  Stats.,  sees.  549,  550; 
South  Dakota,  C.  C.  P.,  sees.  445,  446,  453,  456;  Utah,  Eev.  Stats.,  sec. 
3307;  Washington.  Eallinger's  Codes,  sees.  6505,  6506,  6509;  Wyoming, 
Eev.  Stats.,  sees.  4256,  4258. 


No.  825. — Bond   (Undertaking) — Appeal — Delivery  of  Docu- 
ments, etc. 

[Title  of  Court  and  Cause.] 

Whereas,  R.  R.,  one  of  the  defendants  in  the  above-entitled  ac- 
tion, has  appealed  to  the  supreme  court  of  the  state  of  California, 
from  a  judgment  rendered  and  entered  against  him  in  the  said 
action,  in  the  said  superior  court,  in  favor  of  the  plaintiff  on  the 
tzventy-Hfth  day  of  August,  1906,  for  the  recovery  of  the  posses- 
sion of  certain  documents  therein  described  [or  ordering  the  de- 
livery or  assignment  of  certain  documents ;  or  or d eying  the  exe- 
cution of  a  certain  document  by  the  defendant,  and  for  costs']. 

Now,  therefore,  in  consideration  of  the  premises,  and  of  such 
appeal,  we,  the  undersigned,  /.  .S'.,  of  the  county  of  Santa  Bar- 
bara, merchant,  and  P.  J.,  of  the  said  county  of  Santa  Barbara, 
farmer,  do  hereby  jointly  and  severally  undertake  and  promise, 
on  the  part  of  the  appellant,  that  the  said  appellant  will  pay  all 
damages  and  costs  which  may  be  awarded  against  him  on  the 
appeal  or  on  a  dismissal  thereof,  not  exceeding  three  hundred 
dollars,  to  which  amount  we  acknowledge  ourselves  jointly  and 
severally  bound,  etc.   [as  in  other  bonds]. 

NOTE. — Tn  California  if  the  judgment  or  order  appealed  from  direct 
the  assignment  or  delivery  of  documents  or  personal  property,  the 
execution  of  the  judgment  or  order  cannot  be  stayed  by  appeal,  unless 
the  things  required  to  be  assigned  or  delivered  be  placed  in  the  custody 
of  such  officer  or  receiver  as  the  court  may  appoint,  or  unless  an  under- 
taking be  entered  into  on  the  part  of  the  appellant,  with  at  least  two 
Bureties,  and  in  such  amount  as  the  court,  or  a  judge  thereof,  may  di- 
rect, to  the  effect  that  the  appellant  will  obey  the  order  of  the  appellate 
court,  upon  the  appeal. 

If  the  judgment  or  order  appealed  from  direct  the  execution  of  a 
conveyance  or  other  instrument,  the  execution  of  the  judgment  or  order 


Bond — Undertaking — Bail.  489 

rannot  he  stayed  by  thp  appeal  until  the  instrument  is  exeeuted  and 
deposited  with  the  clerk  with  whom  the  judj^^nient  or  order  is  entered, 
to  abide  the  judgment  of  the  appellate  court:  C.  C.  P.,  sees.  943,  944; 
Alaska,  Codes,  pt.  4,  c.  51.  sec.  508;  Arizona,  C.  C,  par.  1511;  Idaho, 
C.  C.  P.,  sees.  3575,  3576,  3578;  Montana,  C.  C.  P.,  sees.  733,  1728,  1729; 
Nevada,  Comp.  Laws,  sec.  343S;  New  Mexico,  Comp.  Laws,  sec.  31.'16; 
North  Dakota,  C.  C,  sees.  5608,  5610,  5617-5622;  Oregon,  Codes  and 
Stats.,  sees.  549,  550;  South  Dakota,  C.  C,  sees.  445,  446,  4.53,  4r>6; 
Utah,  Rev.  Stats.,  sec.  3308;  Washington,  Ballinger's  Codes,  sees.  6505, 
6506,  6509;  Wyoming,  Rev.  Stats.,  sees.  4256,  4258. 


No.  826. — Bond  (Undertaking) — Appeal — Real  Property, 

[Title  of  Court  and  Cause.] 

Whereas,  R.  R.,  one  of  the  defendants  in  the  above-entitled  ac- 
tion, has  appealed  to  the  supreme  court  of  the  state  of  CaHfornia 
from  a  judgment  made  and  entered  against  him  in  the  said  ac- 
tion, in  the  said  superior  court,  in  favor  of  the  plaintiff  in  said 
action,  on  the  third  day  of  May,  IQ06,  for  the  recovery  of  the 
possession  of  certain  lands  and  premises  therein  described,  and 
■five  hundred  and  thirty  dollars  damages,  for  the  detention  there- 
of, and  one  hundred  and  ten  dollars  and  fifty  cents  costs  of  suit. 

Now,  therefore,  in  consideration  of  the  premises,  and  of  such 
appeal,  we,  the  undersigned,  /.  S.,  of  the  county  of  Santa  Bar- 
bara, merchant,  and  P.  J.,  of  the  said  county  of  Santa  Barbara, 
farmer,  do  hereby  jointly  and  severally  undertake  and  promise, 
on  the  part  of  the  appellant,  that  the  said  appellant  will  pay  all 
damages  and  costs  which  may  be  awarded  against  him  on  the 
appeal,  or  on  a  dismissal  thereof,  not  exceeding  three  hundred 
dollars,  to  which  amount  we  acknowledge  ourselves  jointly  and 
severally  bound ; 

And  whereas,  the  appellant  is  desirous  of  staying  the  execution 
of  the  said  judgment  so  appealed  from,  in  so  far  as  relates  to 
the  delivery  of  possession  of  the  said  land  and  premises,  we  do 
further,  in  consideration  thereof,  and  of  the  premises,  jointly  and 
severally  undertake  and  promise,  and  do  acknowledge  ourselves 
further  jointly  and  severally  bound  in  the  further  sum  of  twelve 
hundred  and  cif:;hty-one  dollars  (being  the  amount  for  that  pur- 
pose fixed  by  the  judge  of  this  court),  that  during  the  possession 
of  such  property  by  the  appellant  he  will  not  commit,  or  suffer 
to  be  committed,  any  waste  thereon,  and  that  if  the  said  judgment 
appealed  from  be  affirmed,  or  the  appeal  dismissed,  he  will  pay 
the  value  of  the  use  and  occupation  of  the  property,  from  the 
time  of  the  appeal  until  the  delivery  of  possession  thereof,  not 
exceeding  the  said  sum  of  tivelve  hundred  and  eighty-one  dollars, 
so  as  aforesaid  fixed  by  the  judge  of  this  court,  by  which  the 
said  judgment  was  rendered; 

And  whereas,  the  appellant  is  desirous  of  staying  the  execution 
of  the  said  judgment  so  appealed  from,  we  do  further,  in  con- 


490  New  Book  of  Forms. 

sideration  thereof,  and  of  the  premises,  jointly  and  severally  un- 
dertake and  promise,  and  do  acknowledge  ourselves  further 
jointly  and  severally  bound  in  the  further  sum  of  twelve  hundred 
dollars  (being  double  the  amount  named  in  the  said  judgment), 
that  if  the  said  judgment  appealed  from,  or  any  part  thereof, 
be  affirmed,  or  the  appeal  be  dismissed,  the  appellant  will  pay, 
in  United  States  gold  coin,  the  amount  directed  to  be  paid  by 
the  judgment,  or  the  part  of  such  amount  as  to  which  the  same 
shall  be  affirmed,  if  affirmed  only  in  part,  and  all  damages  and 
costs  which  may  be  awarded  against  the  appellant  upon  the  ap- 
peal ;  and  that  if  the  appellant  do  not  make  such  payment  within 
thirty  (^o)  days  after  the  filing  of  the  remittitur  from  the  su- 
preme court  in  the  court  from  which  the  appeal  is  taken,  judg- 
ment may  be  entered  on  motion  of  respondent,  in  his  favor 
against  the  undersigned  sureties,  for  such  amount,  together  with 
the  interest  that  may  be  due  thereon,  and  the  damages  and  costs 
which  may  be  awarded  against  the  appellant  upon  the  appeal ; 

And  whereas,  the  appellant  is  desirous  of  staying  the  execution 
of  the  said  judgment  so  appealed  from,  in  so  far  as  relates  to 
the  delivery  of  posses^sion  of  the  said  land  and  premises,  we  do 
further,  in  consideration  thereof,  and  of  the  premises,  jointly  and 
severally  undertake  and  promise,  and  do  acknowledge  ourselves 
further  jointly  and  severally  bound  in  the  further  sum  of  one 
thousand  dollars  (being  the  amount  for  that  purpose  fixed  by  the 
judge  of  this  court),  that  during  the  possession  of  such  property 
by  the  appellant,  he  will  not  commit,  or  suffer  to  be  committed, 
any  waste  thereon,  and  that  if  the  said  judgment  appealed  from 
be  affirmed,  or  the  appeal  dismissed,  he  will  pay  the  value  of  the 
use  and  occupation  of  the  property,  from  the  time  of  the  appeal 
until  the  delivery  of  possession  thereof,  not  exceeding  the  said 
sum  of  one  thousand  dollars,  so  as  aforesaid  fixed  by  the  judge 
of  this  court,  by  which  the  said  judgment  was  rendered. 

[When  the  judgment  is  for  the  sale  of  mortgaged  premises, 
and  the  payment  of  a  deficiency  arising  upon  the  sale,  the  under- 
taking must  also  provide  for  the  payment  of  such  deficiency.] 

NOTE. — In  California,  if  the  ju (Torment  or  order  appealed  from  direct 
the  sale  or  delivery  of  possession  of  real  property,  the  execution  cannot 
be  stayed,  unless  a  written  undertaking  be  executed  on  the  part  of 
the  appellant,  with  two  or  more  sureties,  to  the  effect  that  durina;  the 
possession  of  snch  property  by  the  appellant,  he  will  not  commit,  or 
Buffer  to  be  committed,  any  waste  thereon,  and  that  if  the  jud<Tment 
be  affirmed,  or  the  appeal  dismissed,  he  will  pay  the  value  of  the  use 
and  occupation  of  the  property  from  the  time  of  the  appeal  until  the 
delivery  of  possession  thereof,  pursuant  to  the  judgment  or  order,  not 
exceeding  the  sum  to  be  fixed  by  the  judge  of  the  court  by  which 
the  judgment  was  rendered  or  order  made,  and  which  must  be  specified 
in  the  undertaking.  When  the  judgment  is  for  the  sale  of  mortgaged 
premises,  and  the  payment  of  a  deficiency  arising  upon  the  sale,  the 
nndertaking   must    also    provide    for    the    payment    of    such    deficiency: 


Bond — Undertaking — Bail.  491 

C.  C.  P.,  sec.  94.5;  Alaska,  Codes,  pt.  4,  c.  57,  sec.  503:  Arizona,  C.  C, 
par.  1511;  Idaho,  C.  C.  P.,  sec.  3579;  Montana,  C.  C.  P.,  sec.  1729; 
Nevada,  Comp.  Laws,  sec.  3440;  New  Mexico,  Comp.  Laws,  sec.  313G; 
North  Dakota,  C.  C,  sees.  5608,  5610,  5617-5622;  Oregon,  Codes  and 
Stats.,  sees.  549,  550;  South  Dakota,  C.  C,  sees.  445,  446,  453,  456;  Utah, 
Rev.  Stats.,  sec.  3310;  Washinjrton.  Ballinger's  Codes,  sees.  6505,  6506,' 
6509;   Wyoming,  Rev.  Stats.,  sees.  4256,  4258. 

No.  827. — Bond  (Undertaking) — Arrest  on  Part  of  Plaintiff. 
[Title  of  Court  and  Cause.] 

Whereas,  the  above-named  plaintiff  has  commenced,  or  is  about 
to  commence,  an  action  in  the  superior  court  of  the  city  and 
county  of  San  Francisco,  state  of  California,  against  the  above- 
named  defendant,  and  is  about  to  apply  for  an  order  for  the  ar- 
rest of  the  said  defendant  in  said  action. 

Now,  therefore,  we,  the  undersigned,  residents  of  the  city  and 
county  of  San  Francisco,  in  consideration  of  the  premises  and  of 
the  issuing  of  said  order  of  arrest,  do  undertake,  in  the  sum  of 
tivo  thousand  five  hundred  (2,500)  dollars,  and  promise  to  the 
effect,  that  if  the  said  defendant  recover  judgment,  the  said  plain- 
tiff will  pay  all  costs  which  may  be  adjudged  to  the  said  defend- 
ant, and  all  damages  which  he  may  sustain  by  reason  of  the 
arrest,  if  the  same  be  wrongful  or  without  sufficient  cause,  not 
excecrling  the  said  sum  of  tzuo  t/ionsand  Hve  hundred  dollars. 

(All  courts.) 

NOTE.^ — In  California  tiie  plaintiff  must  file  an  undertaking  with 
sureties  in  an  amount  to  be  fixed  by  the  judge,  which  must  be  at  least 
$500,  that  the  plaintiff  will  pay  all  costs  adjudged  to  the  defendant,  and 
all  damages  which  he  may  sustain  by  reason  of  the  arrest,  if  the  same 
be  wrongful,  or  without  sufficient  cause,  not  exceeding  the  sum  specified 
in  the  undertaking:  C.  C.  P.,  sec.  482;  Alaska,  Codes,  pt.  4,  c.  12,  sec. 
100;  Idaho,  C.  C.  P.,  sec.  3247;  Montana,  C.  C  P.,  sec.  803;  Nevada^ 
Comp.  Laws,  sec.  3171;  North  Dakota,  C.  C,  sec.  5307;  Oregon,  Codes 
and  Stats.,  sec.  261;  South  Dakota,  C.  C.  P.,  sec.  160;  Utah.  Rev.  Stats., 
sec.  3013;  Washington,  Ballinger's  Codes,  sees.  5467,  5468;  Wyoming, 
Rev.  Stats.,  sec.  3960. 

No.  828. — Bond   (Undertaking) — Arrest,  Order  of. 
[Title  of  Court  and  Cause.] 

Whereas,  an  order  to  arrest  the  defendant  in  the  above-entitled 
action  is  about  to  be  issued :  Now,  therefore,  we,  the  undersigned, 
G.  K.,  as  principal,  and  C.  C.  and  L.  S.,  as  sureties,  do  under- 
take, on  the  part  of  the  plaintiff'  in  said  action,  that  if  the  said  de- 
fendant recover  judgment,  the  said  plaintiff'  zvill  pay  to  said  de- 
foidant  all  costs  that  niay  be  adjudged  to  the  said  defendant,  and 
all  damages  zvhich  he  may  sustain  by  reason  of  the  said  arrest, 
if  the  same  be  wrongful  or  zvithout  sufficient  cause,  not  exceed- 
ing the  sum  of  three  hundred  dollars. 

(All  courts.) 


492  New  Book  of  Forms. 

NOTE.— Calif omia,  C.  C.  P.,  sees.  482,  487;  Alaska,  Codes,  pt.  4,  c. 
12,  sec.  100;  Idaho,  C.  C.  P.,  sec.  3247;  Montana,  C.  C.  P.,  sec.  803; 
Nevada,  Comp.  Laws,  sec.  3171;  North  Dakota,  C.  C,  sec.  5307;  Oregon, 
Codes  and  Stats.,  sec.  261;  South  Dakota,  C.  C.  P.,  sec,  160;  Utah,  Eev. 
Stats.,  sec.  3013;  Washington,  Ballinger's  Codes,  sees,  5467,  5468;  Wy- 
Dming,  Rev.  Stats.,  sec.  3960. 

No.  829. — Bond  (Undertaking) — Arrest,    Part  of    Defendant 

on. 

[Title  of  Court  and  Cause.] 

Whereas,  in  a  certain  action  in  the  superior  court  of  the  city 
and  county  of  San  Francisco,  state  of  California,  wherein  /.  D. 
is  plaintiff  and  R.  R.  is  defendant,  an  order  was  duly  made  and 
delivered  to  the  sheriff  of  the  city  and  county  of  San  Francisco, 
requiring  him  forthwith  to  arrest  the  said  defendant,  and  hold 
him  to  bail  in  the  sum  of  two  thousand  one  hundred  and  iifty 
dollars ;  and  the  said  sheriff  having  arrested  the  said  defendant, 
and  taken  him  into  custody  by  virtue  of  the  said  order. 

Now,  therefore,  we,  /.  M.  W.  and  F.  P.  S.  are  jointly  and  sev- 
erally bound  in  the  sum  of  tzvo  thousand  one  hundred  and  iifty 
dollars,  the  amount  in  the  said  order  of  arrest  mentioned,  that 
the  said  defendant  shall  at  all  times  render  himself  amenable  to 
the  process  of  the  said  court  during  the  pendency  of  the  said 
action,  and  to  such  as  may  be  issued  to  enforce  the  judgment 
herein ;  or  that  we  will  pay  to  the  said  plaintiff  the  amount  of 
any  judgment  which  may  be  recovered  in  the  said  action. 

(All  courts.) 

NOTE. — In  California  the  defendant  may  give  bail  by  an  undertak- 
ing by  two  or  more  sureties,  in  the  amount  mentioned  in  the  order 
of  arrest,  that  the  defendant  will  at  all  times  render  himself  amenable 
to  the  process  of  the  court  during  the  pendency  of  the  action,  and  to 
such  as  may  be  issued  to  enforce  the  judgment,  or  that  they  will  pay 
to  the  plaintiff  the  amount  of  any  judgment  recovered:  C.  C.  P.,  sec. 
487;  Alaska,  Codes,  pt.  4,  e.  12,  sec.  102;  Idaho,  C,  C.  P.,  sec.  3252; 
Montana,  C.  C.  P.,  sec.  809;  Nevada,  Comp.  Laws,  sees.  3176-3189;  North 
Dakota,  C.  C,  sec.  5310;  Oregon,  Codes  and  Stats.,  sees.  262,  263;  South 
Dakota,  C.  C,  sec.  164;  Utah,  Rev.  Stats.,  sec.  3018;  Washington,  Bal- 
linger's Codes,  sec.  5473;  Wyoming,  Eev.  Stats.,  sec.  3970. 

No.  830. — Bond  (Undertaking) — Attachment  on. 

[Title  of  Court  and  Cause.] 

Whereas,  the  above-named  plaintiff  has  commenced,  or  is  about 
to  commence,  an  action  in  the  superior  court  of  the  county  of 
Alameda,  state  of  California,  against  the  above-named  defend- 
ant, upon  a  contract  for  the  direct  payment  of  money,  claiming 
that  there  is  due  to  the  said  plaintiff  from  the  said  defendant 
the  sum  of  Hve  hundred  (500)  dollars,  gold  coin  of  the  United 
States,  besides  interest,  and  is  about  to  apply  for  an  attachment 


Bond — UndivRTaking — Bail.  493 

against  the  property  of  the  said  defendant  as  security  for  the 
satisfaction  of  any  judgment  that  may  be  recovered  therein. 

Now,  therefore,  we,  the  undersigned,  residents  of  the  county 
of  Alameda,  in  consideration  of  the  premises,  and  of  the  issuing 
of  said  attachment,  do  jointly  and  severally  undertake  in  the 
sum  of  two  hundred  and  fifty  dollars,  and  promise  to  the  effect, 
that  if  the  said  defendant  recover  judgment  in  said  action,  the 
said  plaintiff  will  pay  all  costs  that  may  be  awarded  to  the  said 
defendant,  and  all  damages,  which  he  may  sustain  by  reason  of 
the  said  attachment,  not  exceeding  the  sum  of  two  hundred  and 
fifty  (2jo)  dollars. 

(All  courts.) 

NOTE. — In  California  the  clerk  requires  an  undertaking  in  not  less 
fhan  $200,  and  not  exceeding  the  amount  claimed,  that  if  defendant 
recovers  judgment,  the  plaintiff  will  pay  all  costs  that  may  be  awarded 
to  liim,  and  all  damages  which  he  may  sustain  by  reason  of  the  attach- 
ment, not  exceeding  the  sum  specified  in  the  undertaking:  C.  C.  P.,  sec. 
539;  Alaska,  Codes^  pt.  4,  c.  1-i,  sec.  137;  Arizona,  C.  C,  par.  338;  Idaho, 
C.  C.  P.,  sec.  3296;  Montana,  C.  C.  P.,  see.  892;  Nevada.  Comp.  Laws, 
sec.  3220;  New  Mexico,  Comp.  Laws,  sees.  2692,  2728;  North  Dakota, 
C.  C,  sec.  5358;  Oregon,  Codes  and  Stats.,  sec.  298;  South  Dakota, 
V.  C,  see.  208;  Utah,  Rev.  Stats.,  see.  3067;  Washington,  Ballinger's 
Codes,  sec.  5355;  Wyoming,  Rev.  Stats.,  sec.  4035. 


No.  831. — Bond  (Undertaking) — Attachment,  Release  of. 
[Title  of  Court  and  Cause.] 

Whereas,  the  above-named  plaintiff  commenced  an  action  in 
the  superior  court  of  the  city  and  county  of  San  Francisco,  state 
of  California,  against  the  above-named  defendant  claiming  that 
there  was  due  to  said  plaintiff  from  said  defendant,  the  sum  of 
■five  hundred  (500)  dollars,  gold  coin  of  the  United  States,  be- 
sides interest,  and  thereupon  an  attachment  issued  against  the 
property  of  the  said  defendant,  as  security  for  the  satisfaction  of 
any  judgment  that  might  be  recovered  therein,  and  certain  prop- 
ertv  and  effects  of  the  said  defendant  have  been  attached  and 
seized  by  the  sheriff  of  the  city  and  county  of  San  Francisco,  un- 
der and  by  virtue  of  the  said  writ ; 

And  whereas  the  defendant  has  appeared  in  the  said  action 
and  has  applied  to  the  judge  of  said  court,  upon  reasonable  no- 
tice to  the  said  plaintiff,  for  an  order  to  discharge  the  said  attach- 
ment, and  the  judge  of  said  court  having  fixed  the  sum  for  which 
the  undertaking  shall  be  executed  at  the  sum  of  eight  hundred 
(Soo)  dollars: 

Now,  therefore,  we.  the  undersigned,  residents  and  freehold- 
ers in  the  said  state  of  California,  in  consideration  of  the  prem- 
ises, and  in  consideration  of  the  release  from  attachment  of  all 
of  the  property  attached,  as  above  mentioned,  and  the  discharge 


494  Ni;w  Book  of  Forms. 

of  said  attachment,  do  hereby  jointly  and  severally  undertake 
in  the  said  sum  of  eigJit  hundred  (Soo)  dollars,  and  promise  that 
in  case  the  said  plaintiff  recover  judgment  in  the  said  action, 
the  said  defendant  will,  on  demand,  redeliver  such  attached  prop- 
erty so  released,  to  the  proper  ofBcer,  to  be  applied  to  the  pay- 
ment of  the  judginent,  or  that  in  default  thereof  the  said  def end- 
wit  and  sureties  will,  on  demand,  pay  to  the  said  plaintiff  the  full 
value  of  the  property  released,  not  exceeding  the  said  sum  of 
eight  huiidred  (800)  dollars, 

NOTE. — In  California  before  making  such  order,  the  court  or  judge 
must  require  au  undertaking  of  defendant,  by  at  least  two  sureties, 
l-esidents  and  freeholders,  or  householders,  in  the  state.  If  plaintiff 
recover  judgment,  defendant  will,  on  demand,  redeliver  the  attached 
property  so  released  to  the  proper  officer,  to  be  applied  to  the  payment 
of  the  judgment,  or,  in  default,  that  the  defendant  and  sureties  will, 
on  demand,  paj'-  to  the  plaintiff  the  value  of  the  property  released.  The 
eourt  fixes  the  sum  of  the  undertaking:  C.  C.  P.,  sec.  555;  Alaska,  Codes, 
pt.  4,  c.  14,  sees.  149,  150;  Arizona,  C.  C,  par.  346-348;  Idaho,  C.  C.  P., 
Bees.  3311,  3312;  Montana,  C.  C.  P.,  sec.  893;  Nevada,  Com  p.  Laws,  sec. 
3234;  New  Mexico,  Comp.  Laws,  sec.  2704;  North  Dakota,  C.  C,  sees. 
5317-5377;  Oregon,  Codes  and  Stats.,  sec.  312;  South  Dakota,  C.  C, 
Bee.  222;  LUah,  Eev.  Stats.,  sec.  3085;  Washington,  Ballinger's  Codes, 
eec.  5374;  Wyoming,  Eev.  Stats.,  sec.  3996. 


No.     832. — Bond     (Undertaking) — Attachment,     Release     of 
(Common  Law). 

[Title  of  Court  and  Cause.] 

Whereas,  the  above-named  plaintiffs  commenced  an  action  in 
the  superior  court  of  the  state  of  California,  in  and  for  the  city 
and  county  of  San  Francisco,  against  the  above-named  defendant, 
claiming  that  there  was  due  to  said  plaintiffs  from  said  defend- 
ant the  sum  of  nine  hundred  and  seventy-four  dollars  and  seventy- 
four  cents  in  gold  coin,  or  thereabouts,  and  thereupon  an  attach- 
ment issued  against  the  property  of  said  defendant  as  security 
for  the  satisfaction  of  any  judgment  that  might  be  recovered 
therein,  and  certain  property  and  effects  of  the  said  defendant 
have  been  attached  and  seized  by  the  sheriff  of  the  said  city  and 
county  under  and  by  virtue  of  said  writ ; 

And  whereas,  the  said  defendant  is  desirous  of  having  said 
property  released  from  said  attachment. 

Now,  therefore,  we,  the  undersigned,  residents  and  household- 
ers in  the  city  and  county  of  San  Prancisco,  in  consideration  of 
the  premises,  and  also  in  consideration  of  the  release  from  said 
attachment  of  the  property  attached,  as  above  mentioned,  do 
hereby  jointly  and  severally  undertake  in  the  sum  of  twelve 
hundred  and  fifty  dollars,  in  gold  coin,  and  promise  that  in  case 
the  plaintiffs  recover  judgment  in  the  action,  defendant  will  pay 


Bond — Undertaking — Baii,.  495 

to  plaintiffs  the  amount  of  whatever  judgment  may  be  recovered 
in  said  action,  together  with  the  percentage,  interest  and  costs; 
the  same  to  be  paid  in  United  States  gold  coin,  if  so  required  by 
tlie  terms  of  the  judgment. 

NOTE. — This  form  of  bond  may  be  varied  to  snit  any  possible  state 
of  a  case.  It  may  be  taken  by  the  officer  having  the  writ,  and  under 
it  he  may  disregtird  all  orders  of  the  court  and  all  statutory  directions, 
he  being  liable  to  the  party  aggrieved  for  all  damages  sustained,  per- 
sonally and  on  his  official  bond.  It  may  be  accepted  in  lieu  of  a 
statutory  bond  by  any  officer  having  a  writ  to  serve,  provided,  L.-' 
has  authority  to  accept  security  from  a  party  against  whom  a  writ 
runs,  and  also,  provided,  that  he  is  absolutely  sure  that  the  bond  is 
amply  sufficient  to  indemnify  him  and  his  official  sureties  in  case  pro- 
ceedings are  instituted  against  him  to  recover  damages  because  of 
his  failure  to  serve  the  writ,  or  to  remove  him  from  office  for  refusing 
to  serve  the  writ. 


No.  833. — Bond  (Undertaking) — Attachment,  to  Stay  Levy  of. 
[Title  of  Court  and  Cause.] 

Whereas,  the  plaintiff  in  the  above-entitled  cause  has  com- 
menced an  action  in  the  aforesaid  court  against  the  above-named 
defendant  for  the  recovery  of  one  thousand  dollars,  gold  coin; 

And  whereas,  an  attachment  has  been  issued,  directed  to  P.  H., 
sheriff  of  the  city  and  county  of  San  Francisco,  and  placed  in  his 
hands  for  execution,  whereby  he  is  commanded  to  attach  and 
safely  keep  all  the  property  of  the  said  defendant  within  his 
county,  not  exempt  from  execution,  or  so  much  thereof  as  may 
be  sufficient  to  satisfy  the  plaintiff's  demand  therein  stated,  in 
conformity  with  the  complaint,  at  one  thousand  dollars,  gold 
coin,  unless  the  defendant  give  him  security  by  the  undertaking 
of  at  least  two  sufficient  sureties,  in  an  amount  sufficient  to  sat- 
isfy said  demand,  besides  costs  [or  in  an  amount  equal  to  the 
value  of  the  property  which  has  been  or  is  about  to  be  attached], 
in  which  case  to  take  such  undertaking; 

And  whereas,  the  said  defendant,  C.  A.,  is  desirous  of  giving 
the  undertaking  mentioned  in  the  said  writ. 

Now,  therefore,  we,  the  undersigned,  residents  of  said  city  and 
county,  in  consideration  of  the  premises,  and  to  prevent  the  levy 
of  said  attachment  do  hereby  jointly  and  severally  undertake  in 
the  sum  of  txvo  thousand  dollars,  being  an  amount  sufficient  to 
satisfy  plaintiff's  demand,  besides  costs,  gold  coin  of  the  United 
States,  and  promise  to  the  effect  that  if  the  said  plaintiff  shall 
recover  judgment  in  said  action,  we  will  pay  to  the  said  plaintiff, 
upon  demand,  the  amount  of  said  judgment  together  with  the 
costs,  not  exceeding  in  all  the  said  sum  of  one  thousand  dollars, 
gold  coin  of  the  United  States. 

(All  courts.) 


496  New  Book  of  Forms. 

NOTE. — Sometimes  a  dofeTKlnnt  hns  not'ce  that  hU  property  is  to  be 
attached.  Tf  so.  this  form  of  bond  may  be  used  to  prevent  the  levy, 
provided,  the  officer  will  accept  it. 


No.  834. — Bond  (Bail) — Indictment  on, 

[Title  of  Court  and  Cause.] 

An  indictment  havinis:  been  found  [or  an  information  haznng; 
been  filed]  on  the  tenth  dav  of  March,  ignd,  in  the  superior  court 
of  the  county  of  San  Mateo,  state  of  California,  charg-insr  Ah 
Sing  with  the  crime  of  burglary  in  breaking  into  the  dtvelling- 
house  of  one  J.  S.,  and  he  havino:  been  admitted  to  bail  in  the 
sum  of  five  thousand  (f),ooo)  dollars ; 

We,  /.  D.,  by  occupation  a  farmer,  and  R.  R.,  by  occupation  a 
house  carpenter,  residents  of  the  county  of  San  Mateo,  hereby 
undertake  that  the  above-named  Ah  Sing  will  appear  and  answer 
the  above-mentioned  indictment  for  information]  in  whatever 
court  it  may  be  prosecuted,  and  will  at  all  times  render  himself 
amenable  to  the  orders  and  process  of  the  court,  and  if  convicted, 
will  appear  for  iudcfment,  and  render  himself  in  execution  there- 
of:  or,  if  he  fails  to  perform  either  of  these  conditions,  that  we 
will  pav  to  the  people  of  the  state  of  California  the  sum  of  five 
thousand  (^,000)  dollars. 

NOTE. — ^In  California  when,  after  indictment  or  information,  the 
defendant  has  a  rijrht  to  be  admitt<»d  to  bail,  the  bail  must  be  put  in  by 
a  written  undertaking  by  two  sufficient  sureties  Twith  or  without  the 
defendant,  in  the  discretion  of  the  court  or  magistrate],  and  acknowl- 
edged hefore  the  court  or  magistrate,  in  substantially  the  above  form: 
Ree  Cal.  Pen.  0.,  sec.  12«?7;  Alaska.  Oodes,  pt.  4,  c."  22,  sees,  216-222 j_ 
Arizona,  Pen.  C,  pars.  1070,  1077,  1078. 


No.  835. — Bond  (Bail) — Forfeit  Money  Deposited. 

[Title  of  Court  and  Cause.] 

The  above-named  defendant,  A.  B.,  indicted  [or  informed 
against]  by  the  name  of  C.  D.,  having  neglected  to  appear  in 
court  for  the  purpose  of  pleading,  when  his  presence  was  law- 
fully required  in  court,  although  he  was  called  to  appear  in  court 
for  the  purpose  of  pleading  to  the  indictment  therein,  in  a  loud 
and  audible  voice  at  the  courtroom  door,  and  proclamation  pub- 
licly made  that,  unless  he  appear,  the  money,  to  wit,  fifteen  hun- 
dred dollars,  deposited  in  lieu  of  bail  for  that  amount,  would  be 
forfeited,  and  the  said  A.  B.  still  neglecting  to  appear  in  court: 
Now,  therefore,  it  is  ordered  that  the  foregoing  facts  be  entered 
in  the  minutes  of  the  court,  and  that  the  said  sum  of  fifteen  hun- 
dred dollars  deposited  in  lieu  of  bail  be,  and  the  same  is  hereby, 
declared   forfeited. 


Bond — Undertaking — Bail.  497 

And  it  is  further  ordered  that  the  said  A.  B.  be  rearrested  by 
any  sheriff,  constable,  marshal  or  policeman  within  this  state, 
and  be  committed  to  the  custody  of  the  sheriff  of  the  city  and 
county  of  San  Francisco,  and  that  he  be  detained  until  legally 
discharged. 

(All  courts.) 


No.    836. — Bond   (Undertaking) — Claim      and    Delivery,    on. 
[Title  of  Court  and  Cause.] 

Whereas,  it  is  alleged  by  the  plaintiff  in  the  above-entitled  ac- 
tion, that  the  defendant  in  the  said  action  has  in  his  possession 
and  unjustly  detains  certain  personal  property,  belonging  to  the 
said  plaintiff,  to  the  possession  of  which  the  said  plaintiff  is  law- 
fully entitled,  of  the  value  of  four  hundred  and  eighty  dollars ; 

And  whereas,  the  said  plaintiff  being  desirous  of  having  the 
said  personal  property  delivered  to  him,  and  by  indorsement  in 
writing  upon  the  affidavit,  has  required  the  sheriff  of  the  county 
of  Siskiyou  to  take  the  said  property  from  the  said  defendant. 

Now,  therefore,  we.  the  undersigned,  residents  of  the  said 
county,  in  consideration  of  the  premises,  and  of  the  deliverv'  of 
said  property  to  the  said  plaintiff,  do  hereby  undertake  and  ac- 
knowledge to  the  effect  that  we  are  jointly  and  severally  bound 
in  the  sum  of  nine  hundred  and  sixty  dollars  (being  double  the 
value  of  said  property  as  stated  in  the  affidavit),  for  the  prosecu- 
tion of  the  said  action  for  the  return  of  the  said  property  to  said 
defendant,  if  return  thereof  be  adjudged,  and  for  the  payment 
to  the  said  defendant  of  such  sum  as  may,  from  any  cause,  be 
recovered  against  the  said  plaintiff. 

(All  courts.) 

NOTE.— In  California,  upon  receipt  of  the  affidavit  and  notice,  with 
..ndertaking,    by   two    or   more    sureties,   approved   by    the    sheriff,    that 
they  are  bound  to  the  defendant  in   double   the  value   of  the   property, 
as   stated    in   tue    affidavit   for   the    prosecution    of   the   action,    for   tho 
return  of  the  property  to  the  defendant,  if  return  thereof  be  adjudged, 
and  for  the  payment  to  him  of  such   sum  as   mav,  from   anv  cause*' be 
recovered    against    the    plaintiff,    the    sheriff    mus't    forthwith    take  '  the 
property   described   in   the    affidavit,   if   it   be    in   the    possession   of   the 
defendant  or  his  agent,  and  retain  it  in  his  custodv:   C.  C.  P.,  sec.  512 
Alaska,    Codes,   pt.    4,   c.    13,   see.    126;    Arizona,    c".    C,    par.    '38U-3S16 
Idaho,  C.   C.  P.,  sees.  3S74,   3875;   Montana,  C.   C.  P.,  sec.   S43;   Nevada 
Comp.   Laws,   sees.    3196,   3197;    New   Mexico,   Comp.    Laws,   sees.    2743 
2755;  North  Dakota,  C.  C.  sec.  5334;  Oregon,  Codes  and  Stats.,  sec.  2S7, 
South  Dakota,  C.  C,  sec.  187;  Utah.  Rev.  Stats.,  sec.  3048;  Washino^ton', 
Ballinger's  Codes,  sec.  5426;  Wyoming  Rev.  Stats.,  sec.  4150.  " 

New  Forms — 32 


498  New  Book  of  Forms. 


No.  837. — Bond  (Undertaking) — Claim  and  Delivery,  Return 
to  Defendant  on. 

[Title  of  Court  and  Cause.] 

Whereas,  D.  M.  L.,  sheriff  of  the  county  of  Siskiyou,  state  of 
California,  under  and  by  virtue  of  an  order  and  requirement  duly 
made  and  issued  in  the  above-entitled  action,  and  to  him  directed, 
did  on  the  third  day  of  June,  igo6,  take  from  the  possession  of 
the  defendant  in  the  said  action,  the  following  described  personal 
property,  to  wit,  Hve  gold  watches,  -live  silver  watches,  seven  dia- 
mond rings; 

And  whereas,  the  said  defendant  is  desirous  that  the  said  prop- 
erty be  redcHvered  to  him  by  the  said  sheriff. 

Now,  therefore,  we,  the  undersigned,  G.  P.,  and  W.  G.,  in  con- 
sideration of  the  premises,  and  of  the  said  redelivery  of  the  said 
property  from  the  said  sheriff  to  the  said  defendant,  do  under- 
take, promise,  and  acknowledge  to  the  effect  that  we  are  jointly 
and  severally  bound  unto  the  said  sheriff  in  the  sum  of  nine 
hundred  and  sixty  (g6o)  dollars  (being  double  the  value  of  the 
said  property,  as  stated  in  the  affidavit  of  the  plaintiff),  for  the 
delivery  thereof  to  the  said  plaintiff,  if  such  delivery  be  adjudged, 
and  for  the  payment  to  him  of  such  sum  as  may,  for  ?.ny  cause, 
be  recovered  against  the  said  defendant. 

(All  courts.) 

NOTE. — In  California  at  any  time  before  the  delivery  of  the  prop- 
erty to  the  plaintiff,  the  defendant  may,  if  he  do  not  except  to  the 
sureties  of  the  plaintiff,  require  the  return  thereof,  upon  giving  to 
the  sheriff  an  undertaking,  by  two  or  more  sureties,  to  the  effect  that 
they  are  bound  in  double  the  value  of  the  property,  as  stated  in  the 
affidavit  of  the  plaintiff,  for  the  delivery  thereof  to  the  plaintiff,  if 
Buch  delivery  be  adjudged,  and  for  the  payment  to  him  of  such  sum 
as  may,  for  any  cause,  be  recovered  against  the  defendant:  C.  C.  P., 
sec.  514;  Alaska,  Codes,  pt.  4,  c.  13,  sec.  128;  Arizona,  C.  C,  par.  3S18, 
.3819;  Idaho,  C.  C.  P.,  sees.  3276,  3277;  Montana,  C.  C.  P.,  sec.  844;  Ne- 
vada, Comp.  Laws,  sec.  3199;  New  Mexico,  Comp.  Laws,  sees.  2751-27.58; 
North  Dakota,  C.  C,  sec.  5336;  Oregon,  Codes  and  Stats.,  sec.  289; 
South  Dakota,  C.  C,  sec.  189;  Utah,  Eev.  Stats.,  sec.  3050;  Washing- 
ton, Ballinger's  Codes,  sec.  5422;  Wyoming,  Rev.  Stats.,  sec.  4151, 


No.  838. — Bond  (Undertaking) — Costs  on  Appeal. 

[Title  of  Court  and  Cause.] 

Whereas,  the  plaintiff  in  the  above-entitled  action  is  about  to 
appeal  to  the  supreme  court  of  the  state  of  California  from  a 
judginent  rendered  against  him  in  said  action,  in  the  said  su- 
])erior  court,  and  in  favor  of  the  defendant,  for  four  hundred 
dollars  costs,  and  entered  on  the  twentieth  day  of  December, 
jgo6. 


Bond — Undek-takinc — Bail.  499 

Now,  therefore,  in  consideration  of  the  premises,  and  of  such 
appeal.  We,  the  undersio^ned,  residents  of  the  county  of  Alameda, 
and  state  of  California,  do  hereby  jointly  and  severally  undertake 
and  promise,  on  the  part  of  the  appellant,  that  the  said  appellant 
will  pay  all  damages  and  costs  wliich  may  be  awarded  against 
him  on  the  appeal,  or  on  a  dismissal  thereof,  not  exceeding  three 
hundred  dollars,  to  which  amount  we  acknowledge  ourselves 
jointly  and  severally  bound. 

NOTE.— California,  C,  C.  P.,  sec.  941;  Alaska,  Codes,  pt.  4,  c.  51, 
sec.  508;  Arizona,  C.  C,  par.  1506-1508;  Idaho,  C.  C.  P.,  sees.  3575,  3576; 
Montana,  C.  C.  P.,  sees.  1724-1728;  Nevada,  Comp.  Laws,  sec.  3436; 
New  Mexico,  Comp.  Laws,  sec.  3136;  Oregon,  Codes  and  Stats.,  sees. 
549,  550;  South  Dakota,  C.  C,  sees.  445,  446,  453,  456;  Utah,  Kev.  Stats., 
sec.  3306;  Wa.shington,  Ballingcr's  Codes,  sees,  6505,  6506,  6509;  Wy- 
oming, Bev.  Stats.,  sees.  4256,  4258. 


No,  839. — Bond  (Undertaking) — Executor — More    than  Two 

Sureties. 

[Title  of  Court  and  Cause.] 

Know  all  Men  by  these  Presents:  That  I,  T.  M.,  as  prin- 
cipal, am  held  and  firmly  bound  unto  the  state  of  California  in 
the  sum  of  eighty-four  thousand  dollars,  lawful  money  of  the 
United  States  of  America,  to  be  paid  to  the  said  state  of  Cali- 
fornia, for  which  payment,  well  and  truly  to  be  made,  I  bind 
myself,  my  and  each  of  my  heirs,  executors,  and  administrators, 
finnly  by  these  presents. 

And  we,  /.  S.,  R.  A.  S.,  and  T.  D.,  as  sureties,  are  severally 
held  and  firmly  bound,  and  jointly  with  said  T.  M.,  are  held  and 
firmly  bound  unto  the  said  state  of  California  in  the  following 
sums,  respectively,  to  wit ;  I,  the  said  /.  S.,  in  the  sum  of  twenty 
thousand  dollars ;  I,  the  said  R.  A.  S.,  in  the  sum  of  fifty  thou- 
sand dollars,  and  I,  the  said  T.  D.,  in  the  sum  of  fourteen  thou- 
sand dollars,  lawful  money  of  the  United  States  of  America,  to 
be  paid  to  the  said  state  of  California,  for  the  payment  of  which 
sums,  .veil  and  truly  to  be  made,  we,  and  each  of  us,  respectively, 
bind  ourselves,  our  and  each  of  our  heirs,  executors,  and  ad- 
ministrators, jointly  and  severally  as  aforesaid  firmly  by  these 
presents. 

Sealed  with  our  seals,  and  dated  this  third  day  of  May,  igo6. 

The  condition  of  the  above  obligation  is  such,  that  whereas, 
hy  an  order  of  the  superior  court  of  the  cotmty  of  Sacramento, 
state  aforesaid,  duly  made  and  entered  on  the  second  day  of  May, 
IQ06,  the  ahove-hounden  T.  M.  and  one  G.  B.  were  appointed  ex- 
ecutors of  the  last  zvill  and  testament  of  P.  C,  deceased,  and  let- 
ters testamentary  zvere  directed  to  be  issued  to  them  upon  exe- 
cuting a  bond,  according  to  law.  in  said  siim  of  eighty- four  thou- 


500  New  Book  of  Forms. 

sand  dollars,  being  security  as  ivell  for  the  personal  property  of 
the  estate  of  said  deceased  as  for  the  annual  rents,  issues  and 
profits  of  the  real  estate  of  said  deceased  in  his  charge  as  execu- 
tor. 

Now,  therefore,  if  the  said  T.  M.,  as  such  executor,  shall  faith- 
fully execute  the  duties  of  the  trust,  according  to  lazv,  then  this 
oblig'atioii  to  be  void,  otherwise  to  remain  in  full  force  and  effect. 

NOTE. — In  California  every  person  to  whom  letters  testamentary 
or  of  administration  are  directed  to  issue  must,  before  receiving  them, 
execute  a  bond  to  the  state  of  California,  with  two  or  more  sufficient 
sureties,  to  be  approved  by  the  superior  court,  or  a  judge  thereof. 
In  form  the  bond  m^ast  be  joint  and  several,  and  the  penalty  must 
not  be  less  than  twice  the  value  of  the  personal  property,  and  twice 
the  probable  value  of  the  annual  rents,  profits,  and  issues  of  real  prop- 
erty belonging  to  the  estate,  which  values  must  be  ascertained  by  the 
superior  court,  or  a  judge  thereof,  by  examining,  on  oath,  the  party 
applying,  and  any  other  persons  [that  is  to  say,  if  there  is  doubt  as 
to  the  qualification  of  the  surety,  evidence  may  be  taken  to  ascertain 
the  facts]:  C.  C.  P.,  sec.  1388;  Alaska,  Codes!  pt.  4,  c.  81,  sec.  777; 
Arizona.  C.  C,  par.  1667;  Idaho,  C.  C.  P..  see.  4062;  Montana,  C.  C.  P.. 
see.  2471;  Nevada,  Laws,  Stats.  1903,  p.  209;  New  Mexico,  Comp.  Laws, 
sec.  1944;  North  Dakota,  Probate  Code,  sees.  6347-63.52;  Oregon,  Stats. 
1903,  p.  216;  South  Dakota,  Probate  Code,  sees.  101-107;  Utah,  Eev. 
Stats.,  sec.  3827;  Washington,  Ballinger's  Codes,  sec.  6147;  Wyoming, 
Eev.  Stats.,  sec.  4661. 

No.  840. — Bond  (Undertaking) — Guardian — Qualifying. 
[Title  of  Court  and  Estate.] 

Know  all  Men'  by  these  Presents  :  That  we,  M.  /.,  as  prin- 
cipal, and  /.  D.  and  R.  R.  as  sureties,  are  held  and  firmly  bound 
unto  W.  J.,  a  minor,  in  the  sum  of  ofie  thousand  dollars,  lawful 
money  of  the  United  States  of  America,  to  be  paid  to  the  said 
W.  J.,  minor,  for  which  payment  well  and  truly  to  be  made,  we 
bind  ourselves,  our  heirs,  executors,  and  administrators,  jointly 
and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals  and  dated  this  tzvelfth  day  of  December, 
ipo6. 

The  condition  of  the  above  oblit^ation  is  such,  that  whereas  an 
order  was  m.ade  by  the  superior  court  of  the  city  and  county  of 
San  Francisco,  state  of  California,  on  the  tenth  day  of  December, 
ipo6,  appointing  the  above-bounden  M.  J.  the  guardian  of  the 
person  and  estate  of  said  minor,  and  directing  that  letters  of 
guardianship  be  issued  to  her  upon  her  giving  a  bond  to  said 
minor,  with  sufficient  sureties,  to  be  approved  by  the  judge  of 
said  superior  court,  in  the  penal  sum  of  one  thousand  dollars, 
conditioned  that  said  guardian  shall  faithfully  execute  the  duties 
of  her  trust,  according  to  law. 

Now,  therefore,  if  the  said  M.  J.  shall  faithfully  execute  the 
duties  oi  her  trust,  according  to  law,  then  this  obligation  shall  be 
void  and  of  no  effect,  else  to  remain  in  full  force  and  virtue. 


Bond — Undertaking — Baii,.  tqi 

NOTE. — In  California  the  statute  provides  that  the  court  must  re- 
quire of  the  guardian  a  bond  fonditioned  that  he  will  faithfully  exe- 
cute the  duties  of  his  trust  according  to  law;  and  the  following  con- 
ditions shall  form  a  part  of  said  bond  without  being  expressed  therein: 
1.  To  make  an  inventory  of  all  the  estate,  real  and  personal,  of  his 
wnrd  that  comes  to  his  possession  or  knowledge,  and  to  return  the  same 
within  such  time  as  the  court  may  order.  2.  To  dispose  of  and  manage 
the  estate  aeconling  to  law.  and  for  the  best  interest  of  the  ward,  and 
faithfully  to  discharge  his  trust  in  relation  thereto,  and  also  in  relation 
to  the  care,  custody,  and  education  of  the  ward.  3.  To  render  an 
account  on  oath  of  the  jiroperty,  estate,  and  moneys  of  the  ward  in 
his  hands,  and  all  proceeds  or  interests  derived  therefrom,  and  of  the 
mjiiiMgenient  and  disposition  of  the  same,  within  three  months  after  his 
appointment,  and  at  such  other  times  as  the  court  directs,  and  at  the 
expiration  of  his  trust  to  settle  his  accounts  with  the  court,  or  with- 
the  ward,  if  he  be  of  full  age,  or  his  legal  representatives,  and  to  pay 
over  and  deliver  all  the  estate,  moneys,  and  effects  remaining  in  his 
hands,  or  due  from  him  on  such  settlement,  to  the  person  who  is  law- 
fully entitled  thereto:  C.  C.  P.,  sec.  1754;  Alaska,  Codes,  pt.  4,  c.  83, 
sees.  891,  908,  913;  Arizona,  C.  C,  par.  1961;  Idaho,  C.  C.  P.,  sec.  4348; 
Montana,  C.  C.  P.,  sec.  2957;  Nevada,  Comp.  Laws,  sec.  565;  New  Mexico, 
Comp.  Laws,  sees.  1442.  1446;  North  Dakota,  Probate  Code,  sees.  6347- 
6352;  Oregon,  Codes  and  Stats.,  sec.  5263;  South  Dakota,  Probate  Code, 
sec.  373;  Washington,  Ballinger's  Codes,  sec.  6403;  Wyoming,  Rev. 
Stats.,  sec.  4873. 

No.  841. — Bond   (Undertaking) — Guardian — Sale  of  Real  Es- 
tate. 
[Title  of  Court  and  Estate.] 

Know  all  Men  by  these  Presents:  That  we.  M.  J.,  as  prin- 
cii-al,  and  /.  D.  and  R.  R.  as  sureties,  are  held  and  firmly  bound 
to  W.  J.,  C.  J.  and  E.  J.,  wards  of  the  above-bounden  M.  J.,  in 
the  sum  of  fifteen  hundred  dollars,  lawful  money  of  the  United 
States  of  America,  to  be  paid  to  the  said  wards,  for  which  pay- 
ment, well  and  truly  to  be  made,  we  bind  ourselves,  our  and 
each  of  our  heirs,  executors  and  administrators  jointly  and  sev- 
erally, firmly  by  these  presents. 

Scaled  with  our  seals  and  dated  this  fifteenth  day  of  February, 
ipo6. 

The  condition  of  the  above  obligation  is  such,  that  whereas  an 
order  was  made  on  the  fourteenth  day  of  February,  1906,  by  the 
superior  court  of  the  said  eity  and  county  of  San  Francisco,  au- 
thorizing the  above-named  principal,  as  guardian  of  the  persons 
and  estates  of  W.  J.,  C.  J.,  and  E.  J.,  minors,  to  sell  certain  real 
estate,  the  property  of  said  minors,  and  bond  in  the  sum  above 
named  was  ordered  to  be  given  before  the  sale. 

Now,  therefore,  if  the  said  M.  J.,  as  such  guardian,  faith  full  v 
execute  the  duties  of  her  trust  according  to  law,  and  shall  sell 
the  said  real  estate  in  the  manner  prescribed  bv  law  for  sales  of 
real  estate  by  executors  and  administrators,  and  shall  account  for 
and  dispose  of  the  proceeds  of  the  sale  in  the  manner  provided 
by  law,  then  this  obligation  to  be  void,  otherwise  to  remain  in 
full  force  and  effect. 


502  New  Book  of  Forms. 

NOTE. — In  California,  before  a  sale  of  a  ward's  real  estate,  a  guardian 
must  give  a  bond  to  the  ward  with  condition  to  sell  the  land  in  the 
manner,  and  to  account  for  the  proceeds  of  the  sale,  as  provided  for  by 
law:  C.  0.  P.,  sec.  1788.  All  the  provisions  of  law  respecting  sales  and 
accounts  of  sales  by  executors  and  administrators  are  applicable  to 
sales  by  guardians:  Id.,  sec.  1789;  Alaska,  Codes,  pt.  4,  c.  88,  sees.  891, 
908.  913;  Arizona,  C.  C,  par.  2009;  Idaho,  C.  C.  P.,  see.  4378;  Montana, 
C.  C.  P.,  sec.  2012;  New  Mexico,  Comp.  Laws,  sees.  1442,  1444,  1468; 
North  Dakota,  Probate  Code,  sees.  6347-63-52;  Oregon,  Codes  and  Stats., 
sees.  5602,  5603;  South  Dakota,  Probate  Code,  sec.  403;  Utah,  Rev. 
Stats.,  sec.  4015;  Washington,  Ballinger's  Codes,  sees.  6414,  6416;  Wyo- 
ming, Eev.  Stats.,  sec.  4919. 


No.  842. — Bond — Inheritance  Tax — Beneficiary  to  State. 
[Title  of  Court  and  Cause.] 

Know  all  Men  by  these  Presents:  That  we,  A.  B.  and  C. 
D.,  both  residents  of  the  city  and  county  of  San  Francisco,  state 
of  California,  are  bound  unto  the  people  of  the  state  of  California 
in  the  sum  of  $20,000,  gold  coin  of  the  United  States,  for  which 
payment  we  jointly  and  severally  bind  ourselves  by  these  presents. 

bated  this day  of ,  A.  D.  igo6. 

The  condition  of  the  obligation  is  such:  That  whereas  an  in- 
heritance tax  of  $10,000  has  been  assessed  against  E.  F.  on  ac- 
count of  1  legacy  to  him  under  the  last  zvill  of  S.  D.,  deceased, 
etc.,  and  whereas  said  £.  F.,  has  elected  not  to  pay  said  tax  until 
he  shall  come  into  the  actual  possession  or  enjoyment  of  said 
property.  Now,  if  the  said  B.  F.  will  pay  said  tax  and  interest 
thereon  at  such  time  or  period  as  he  or  his  representatives  may 
come  into  the  actual  possession  or  enjoyment  of  such  property, 
then  this  obligation  to  be  void,  otherwise  to  remain  in  force. 

NOTK— California,  Act  of  March  20,  1905,  Stats.,  p.  341,  sec.  5, 


No.   843. — -Bond — Inheritance   Tax — Executor. 

[The  same  as  in  No.  842  to  and  including  the  words  "bind  our- 
selves by  these  presents";  then  continue:] 

The  condition  of  this  obligation  is  such :  That  whereas  A.  B.  is 
the  executor  of  the  will  of  C.  D.,  deceased,  and  zuhereas,  it  is 
claimed  that  there  is  due  the  state  of  California  $^,000  from  E.  F., 
a  legatee  under  said  zvill  on  account  of  said  $5,000  having  been  as- 
sessed and  leased  as  a  tax  upon  said  legacy;  and  zvhereas  and 
by  reason  of  unavoidable  delay  ceased  by  litigation,  said  tax  has 
not  been  paid  within  eighteen  months  from  the  death  of  said  C.  D., 
and  whereas,  the  said  estate  is  not  ready  for  settlement,  nor  has 
said  executor  sufficient  money  in  his  possession  belonging  to  said 
estate  with  which  to  pay  said  tax ;  now,  if  said  executor,  as  such. 


Bond — Undertaking — Baiu  503 

will  pay  or  cause  said  tax  to  be  paid  and  all  interest  thereon  as 
soon  as  the  cause  for  delay,  as  hereinabove  stated,  in  the  payment 
of  said  tax,  is  removed,  then  this  obligation  to  be  void,  otlier- 
wise  to  be  and  remain  in  force. 

NOTE.— California,  Stats.  1905.  p.  341,  sees.  5-8. 


No.  844. — Bond  (Undertaking),  Injunction,  on, 
[Title  of  Court  and  Cause.] 

Whereas,  the  above-named  plaintiff  has  commenced  an  action, 
and  issued  summons  therein,  in  the  superior  court  of  the  county 
of  Lassen,  state  of  California,  against  the  above-named  defendant, 
and  is  about  to  apply  for  an  injunction,  in  said  action,  against 
the  said  defendant,  enjoining-  and  restraining-  him  from  the  com- 
mission of  certain  acts,  as  in  the  complaint  filed  in  the  said  action 
is  more  particularly  set  forth  and  described. 

Now,  therefore,  we,  the  undersig-ned,  residents  of  the  county  of 
Lassen,  state  of  California,  in  consideration  of  the  premises,  and 
of  the  issuing  of  said  injunction,  do  jointly  and  severally  under- 
take in  the  sum  of  three  thousand  (3,000)  dollars,  and  promise  to 
the  eflfect,  that  in  case  said  injunction  shall  issue,  the  said  plain- 
tiff will  pay  to  the  said  party  enjoined,  such  damages,  not  ex- 
ceeding the  sum  of  three  thousand  (3000)  dollars,  as  such  party 
may  sustain  by  reason  of  the  said  injunction,  if  the  said  superior 
court  finally  decide  that  the  said  plaintiff  was  not  entitled  thereto. 

NOTE. — Tn  California,  on  granting  an  injunction,  except  when  the 
people  of  the  state,  a  county,  or  municipal  corporation,  or  a  married 
■woman  in  a  suit  against  her  husband,  is  a  party  plaintiflp,  a  written 
undertaking  on  the  part  of  the  plaintiff  is  required,  that  the  plaintiff 
will  pay  to  the  party  enjoined  such  damages,  not  exceeding  an  amount 
to  be  specified,  as  such  party  may  sustain  by  reason  of  the  injunetioD 
if  the  court  finally  decide  that  the  plaintiff  was  not  entitled  thereto: 
C.  C.  P.,  sec.  529;  Alaska,  Codes,  pt.  4,  c.  41,  sec.  384;  Arizona,  C.  C.', 
par.  2747;  Idaho,  C.  C.  P.,  sec.  3287;  Montana,  C.  C,  P.,  sec.  874;  Nevada] 
Comp.  Laws,  sec.  3215;  North  Dakota,  C.  C,  sec.  5347;  Oregon,  Codes 
and  Statutes,  sec.  418;  South  Dakota,  C.  C.  P.,  sec.  200;  tltah.  Rev. 
Stats.,  sec.  3060;  W.nshinorton,  BallLngcr's  Codes,  see.  5438:  Wyonun<T 
Eev.  Stats.,  sees.  4043,  4175,  "' 


504  New  Book  of  Forms. 


CERTIFICATE. 


No.  845, — Certificate  of  Appointment  of  Road  Overseer. 

State  of  California, 
County  of  San  Mateo, — ss. 

I,  H.  IV.,  county  clerk  of  said  county,  and  ex-ofificio  clerk  of  the 
board  of  supervasors  therein,  do  hereby  certify,  that  at  a  regular 
meeting  of  said  board,  held  on  Monday,  the  sixteenth  day  of  No- 
vember, ipo6,  T.  H.  was  duly  appointed  Road  Overseer  of  Road 
District  No.  3,  of  Township  No.  2,  of  said  county,  as  appears  by 
the  records  of  the  proceedings  of  said  board  of  supervisors  now  in 
my  custody. 


No.  846. — Certificate  of  Appointment — Oath  to. 

State  of  California, 
County  of  San  Mateo, — ss. 

I  do  swear  that  I  will  support  the  constitution  of  the  United 
States,  and  the  eojistitntion  of  the  state  of  California,  and  that  I 
will  faithfully  discharge  the  duties  of  Road  Overseer  of  Road 
District  No.  ^,  of  Township  No.  2,  county  of  San  Mateo,  ac- 
cording to  law  and  the  best  of  my  ability. 


isjo.  847. — Certificate  that  Notary  Public  has  Taken  His  Offi- 
cial Oath,  etc. 

Office  of  the  County  Clerk, 
County  of  Amador. 

I,  L.  J.  P-,  county  clerk  of  the  county  of  Amador,  state  of  Cali^ 
fornia,  do  hereby  certify  that  on  the  tenth  day  of  July,  A.  D.  ipo6, 
E.  W.  B.,  duly  qualified  as  notary  public  in  and  for  said  county, 
taking  his  official  oath  and  filing  his  official  bond  as  by  law  re- 
quired, and  which  bond  was  duly  approved,  as  by  law  required. 


Certificate.  505 


No.  848. — Certificate — Attachment  Writ — That   Person   Issu- 
ing is  a  Justice  of  the  Peace — By  County  Clerk. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

I  hereby  certify  than  on  the  ^d  day  of  June,  A.D.  ipo6,  A.  B.  C, 
whose  name  is  signed  to  the  writ  of  attachment  to  which  this  in- 
strument is  attached,  was  an  acting  justice  of  the  peace  of  the 
county  of  Butte,  state  of  California. 

NOTE.— California,  C.  a  P.,  see.  868;  Stats.  190-5,  208. 

No.  849. — Certificate  of  Election, 
UNITED  STATES  OF  AMERICA. 

State  of  California, 
County  of  Butte, — ss. 

I,  W.  A.  S.,  county  clerk,  in  and  for  the  city  and  county  of  San 
Francisco,  in  the  state  of  California,  do  hereby  certify  that  a  gen- 
eral election,  held  in  and  for  said  city  and  county  of  San  Fran- 
cisco, on  the  seventh  day  of  September,  one  thousand  eight  hun- 
dred and  ninety-four,  P.  J.  W.  was  duly  elected  to  the  office  of 
sheriff  in  and  for  said  county,  as  appears  by  the  official  returns 
of  said  election,  and  tlie  statement  of  votes  cast,  now  on  file  in 
my  office. 

No.  850.— Oath  of  Office. 

State  of  California, 

City  and  County  of  San  Francisco. 

I  do  solemnly  swear  that  I  will  support  the  constitution  of  the 
United  States,  and  the  constifution  of  the  State  of  California,  and 
that  I  will  faithfully  discharge  the  duties  of  sheriff  in  and  for  the 
city  and  county  of  San  Francisco,  according  to  the  best  of  my 
ability.     So  help  me  God. 

No.  851. — Certificate  to  Signature. 

State  of  California, 
County  of  San  Mateo, — ss. 

I,  H.  W.,  county  clerk  of  the  county  of  San  Mateo,  state  of 
California,  hereby  certify  that  G.  W.  P.,  before  whom  the  an- 
nexed instrument  was  made,  acknowledged,  and  executed,  and 


5o6  New  Book  of  Forms. 

who  has  hereunto  subscribed  his  name,  was  at  the  time  of  so  do- 
ing a  notarx  public  in  and  for  the  said  San  Mateo  county,  duly 
commissioned  and  sworn,  and  that  his  signature  thereto  is  gen- 
uine. I  further  certify  that  the  said  instrument,  a  deed,  is  made, 
acknowledged,  and  executed  in  accordance  with  the  laws  of  the 
state  of  California. 

No.   852. — Certificate   of  Marriage. 

This  certifies  that  the  writ  of  holy  matrimory  was  celebrated 
between  /.  W.  Y.,  of  Sacramento,  state  of  California,  and  M.  M. 
S.,  of  Redwood  City,  county  of  San  Mateo,  on  the  twenty-fifth 
day  of  December,  one  thousand  nine  hundred  and  four,  at  the 
city  and  county  of  San  Francisco,  by  me,  /.  C.  P.,  justice  of  the 
peace  of  said  city  and  county. 

No.  853. — Certificate  of  Marriage. 

This  certifies  that  on  the  twenty-fifth  day  of  January,  in  the 
year  of  our  Lord,  1905,  J.  Y.  and  L.  A.  were  by  me  united  in 
marriage,  at  Unitarian  Church,  San  Francisco,  according  to  the 
laws  of  the  state  of  California. 

No.    854. — Certificate — Citizenship    of    Minor. 

[Title  of  Court  and  Cause.] 

It  appearing  to  the  satisfaction  of  this  court,  by  the  oaths  of 
E.  B.  and  H.  S.,  citizens  of  the  United  States  of  America,  wit- 
nesses for  that  purpose,  first  duly  sworn  and  examined,  that  M. 
M.  L.  is  a  native  of  Russia,  has  resided  in  the  United  States  of 
America  three  years  next  preceding  his  arriving  at  the  age  of 
twenty-one  years,  and  that  he  has  continued  to  reside  in  the 
United  States  to  the  present  time,  and  has  resided  within  the 
limits  and  under  the  jurisdiction  of  the  United  States  five  years 
at  least  last  past,  and  within  the  state  of  California  for  one  year 
at  least  last  past;  and  that  during  all  of  said  five  years'  time  he 
has  behaved  as  a  man  of  good  moral  character,  attached  to  the 
principles  of  the  constitution  of  the  United  States,  and  well  dis- 
posed to  the  good  order  and  happiness  of  the  same ;  and  the  said 
applicant  has  declared  his  intention  to  become  a  citizen  of  the 
United  States ;  and  having  now  here,  before  this  court,  taken  an 
oath  that  he  will  support  the  constitution  of  the  United  States 
of  America,  and  that  he  doth  absolutely  and  entirely  renounce 
and  abjure  all  allegiance  and  fidelity  to  every  forei.gn  prince, 
potentate,  state,  or  sovereignty  whatever,  and  particularly  to 
that  of  the  Empire  of  Russia: 

It  is  therefore  ordered,  adjudged,  and  decreed,  that  the  said  M. 
M.  L.  be,  and  he  is  hereby  admitted  and  declared  to  be,  a  Citi- 
zen OF  THE  United  States  of  AMEiiicA. 


Certificate.  507 


No.   855. — Certificate — Tax   Sale   of  Resil   Estate   to  an   Indi- 
vidual. 

SOLD  FOR  THE  NONPAYMENT  OF  STATE  AND  COUNTY  TAXES  FOR  TUE 
FISCAL    YEAR    1 893-94. 

State  of  California, 
County  of  Sacramento, — ss. 

I,  A.  H.,  tax  collector  of  the  county  of  Sacramento,  do  hereby 
certify  that,  by  virtue  of  Chapter  VII,  Title  IX  of  Part  III,  of 
the  "Political  Code  of  the  State  of  California,"  I,  A.  H.,  the  tax 
collector  of  the  county  aforesaid,  heretofore  and  at  the  time  here- 
inafter mentioned,  did  on  the  third  Monday  in  January,  i8p4,  de- 
liver to  the  auditor  of  said  county  a  complete  "Delinquent  List" 
of  all  persons  and  property  then  owing  taxes  in  said  county  to  the 
state  of  California,  and  to  the  county  of  Sacramento,  together  with 
the  costs  and  charges  due  thereon,  which  said  delinquent  list  did 
include  the  property  first  hereinafter  described  in  this  certificate. 
That  the  said  property  was  assessed  for  the  fiscal  year  ending 
Jinie  so,  i8g4,  for  state  and  county  taxes,  at  $1,000,  to  J.  W.;  that 
the  propert)  assessed  situated,  lying,  and  being  within  the  county 
of  Sacramento,  and  described  thus:  [Description.]  Was  on  the 
tzventicth  day  of  March,  i8p4,  in  accordance  with  law,  offered 
for  sale  to  pay  said  taxes,  at  public  auction  in  front  of  the  county 
courthouse,  in  said  county ;  that  at  said  auction  /.  /.  was  the 
bidder  who  'was  willing  to  take  the  least  quantity  or  smallest 
portion  of  the  interest  in  said  land,  and  pay  the  taxes,  costs,  and 
charges  due  thereon,  which  taxes,  costs,  and  charges,  including 
fifty  (^o)  cents  for  this  certificate,  amount  to  thirty-one  dollars; 
that  the  said  least  quantity  or  smallest  portion  of  the  interest  in 
said  land  lying  and  being  within  the  county  of  Sacramento,  as 
is  hereinafter  described,  to  wit:  [Description.]  Was  by  me,  A.  H., 
tax  collector  as  aforesaid,  struck  off  to  the  said  /.  /.,  who  paid  the 
full  amount  of  said  taxes,  costs,  and  charges,  and  therefore  be- 
came the  purchaser  of  the  last  above-described  piece  or  parcel  of 
land  so  sold  as  aforesaid  for  said  taxes,  and  I  do  further  certify 
that  the  said  real  estate  was  sold  subject  to  redemption,  pursuant 
to  the  statute  in  such  cases  made  and  provided,  and  that  unless 
redeemed  within  twelve  months  from  the  date  of  this  purchase, 
said  purchaser  will  be  entitled  to  a  deed  at  the  expiration  of 
tzvelve  months  from  date  of  the  sale. 

NOT"R. — No  lonjor  in  use  in  California.  No  person  ia  pernutted  to 
bid  ajrainst  the  state. 


5o8  New  Book  of  Forms. 


No.  856. — Certificate — Tax  Sale  of  Real  Estate  to  State. 

SOLD  FOR  THE  NONPAYMENT  OF  STATE  AND  COUNTY  TAXES  FOR  THB 
FISCAL   YEAR    1 894-95. 

State  of  California, 
County  of  Sacramento, — ss. 

I,  A.  H.,  tax  collector  of  the  county  of  Sacramento,  do  hereby 
certify  that  by  virtue  of  Chapter  VII,  Title  IX,  Part  III,  of  the 
'"Political  Code  of  the  state  of  California,"  I,  A.  H.,  the  tax  col- 
lector of  the  county  aforesaid,  heretofore  and  at  tlie  time  herein- 
after mentioned,  did  on  the  jd  Monday  in  January,  i8g>4,  deliver 
to  the  auditor  of  said  county  a  complete  "Delinquent  List"  of  all 
persons  and  property  then  owing  taxes  in  the  said  county  to  the 
state  of  California  and  to  the  county  of  Sacramento,  together  with 
the  costs  and  charges  due  thereon ;  which  said  delinquent  list  did 
include  the  property  first  hereinafter  described  in  this  certificate. 
That  the  said  property  was  assessed  for  the  fiscal  year  ending  June 
^o,  i8p4,  for  state  and  county  taxes,  at  one  thousand  dollars,  to 
/.  B.  That  the  property  assessed  situated,  lying,  and  being  within 
the  county  of  Sacramento,  and  described  thus:  [Description.] 
Was  on  the  twentieth  day  of  March,  i8p4,  in  accordance  with  law. 
offered  for  sale  to  pay  said  taxes,  at  public  auction,  in  front  of 
the  county  courthouse,  in  said  county,  to  the  said  best  bidder, 
who  was  willing  to  take  the  least  quantity  or  smallest  portion  of 
the  interest  in  said  land,  and  pay  the  taxes,  costs,  and  charges 
due  thereon,  which  taxes,  costs,  and  charges  amounted  to  thirty- 
one  dollars. 

That  on  said  day  there  was  no  purchaser  in  good  faith  for  the 
same,  or  any  part  thereof.  That  thereafter,  to  wit,  on  the  twentieth 
day  of  April,  i8p4,  to  which  day  I  had  postponed  the  sale,  I 
again  offered,  in  accordance  with  law,  the  said  property  for  sale 
to  pay  said  taxes,  at  public  auction,  in  front  of  the  county  court- 
house, in  the  said  county;  and  there  being  no  purchaser  in  good 
faith  for  the  same  or  any  part  of  it,  I  did  then  and  there  strike  off 
to  the  people  of  the  state  of  California,  as  purchasers,  the  whole  of 
said  property  for  the  amount  of  said  taxes,  costs,  and  charges,  to 
wit,  the  sum  of  thirty-one  dollars,  whereby  the  people  of  the  state 
of  California  became  the  purchasers  of  the  last  above  described 
piece  or  parcel  of  land  so  sold  as  aforesaid  for  said  taxes ;  and 
I  do  further  certify  that  the  said  real  estate  was  sold  subject  to 
redemption,  pursuant  to  the  statute  in  such  cases  made  and  pro- 
vided, and  that  unless  redeemed  within  tzvelve  months  from  the 
date  of  this  purchase,  said  purchasers  will  be  entitled  to  a  deed 
at  the  expiration  of  tvv'elve  months  from  the  date  of  the  sale. 

NOTE. — No  longer  uscfl  in  '^nlifornia.  AW  roal  ostrtto  is  sold  to  the 
state  by  an  entry  in  the  records.     No  certificate  is  issued. 


Certificate.  509 


No.  857. — Certificate — Duplicate. 

INDORSEMENT. 

For  value  received,  I  hereby  transfer,  assign,  convey,  and  set 
over  unto  G.  B.,  heirs  and  assigns,  all  my  right,  title,  and  interest 
in  and  to  the  within  certificate  of  sale  (and  the  duplicate  thereof) 
of  real  estate  sold  for  the  nonpayment  of  the  state  and  county 
taxes,  for  the  fiscal  year  i8p4-p§,  in  the  county  of  Sacramento, 
and  numbered  tzvcnty-three. 

To  have  and  to  hold  the  same  unto  the  said  G.  B.,  heirs  and 
assigns  forever,  with  full  power  and  authority  to  demand  and  re- 
ceive in  his  own  name,  or  otherwise,  a  deed  therefor,  or  otherwise 
use  or  dispose  of  at  pleasure. 


No.  858. — Certificate — Execution — Sale  of  Real  Eistate. 
[Title  of  Court  and  Cause.] 

I,  T.  D.,  sheriff  of  the  city  and  county  of  San  Francisco,  do 
hereby  certify,  that  by  virtue  of  an  execution  in  the  above  cause, 
attested  the  tenth  day  of  August,  igo6,  by  which  I  was  com- 
manded to  make  the  amount  of  two  thousand  five  hundred  and 
sixty-four  dollars  and  forty-eight  cents,  in  United  States  gold 
coin,  to  satisfy  the  judgment  in  this  action,  with  interest  thereon 
and  costs,  out  of  the  personal  property  of  the  above  defendants; 
and  if  suflficient  personal  property  could  not  be  found,  then  out 
of  the  real  property  belonging  to  the  said  defendants,  on  the  tetith 
day  of  May,  igo6,  or  at  any  time  thereafter,  as  by  the  said  writ, 
reference  being  thereunto  had,  more  fully  appears :  I  have  levied 
on  and  this  day  sold,  at  public  auction,  according  to  the  statute 
in  such  cases  made  and  provided,  to  W.  J.  H.,  who  was  the  high- 
est bidder,  for  the  sum  of  tivo  thousand  five  hundred  and  forty- 
one  (2541)  dollars,  wdiich  was  the  whole  price  paid  by  him  for 
the  same,  the  real  estate  described  as  follows,  to  wit:  [Descrip- 
tion.] That  the  price  of  each  distinct  lot  and  parcel  was  as  fol- 
lows: All  the  above-described  property,  in  one  parcel,  for  the  said 
sum  of  tzvo  thousand  five  hundred  and  forty-one  dollars,  gold  coin 
of  the  United  States.  And  that  the  said  real  estate  is  subject  to 
redemption  in  six  months,  pursuant  to  the  statute  in  such  cases 
made  and  provided. 

NOTE.— California,  C.  C.  P..  sec.  700;  Alaska,  Codes,  pt.  4,  c.  31,  seca. 
310-332;  AriTwna,  C.  C,  par.  2-375;  Idaho,  C.  C.  P.,  sec.  3.")52;  Montana, 
C.  C.  P.,  sees.  1231-1233;  Nevada,  Comp.  Laws,  sees.  3324,  3326,  3329- 
3340;  North  Dakota,  C.  C.  P.,  sec.  .'5.=>38;  South  Dakota,  C.  C.  P.,  sec. 
373;  Utah,  Rev.  Stats.,  see.  3258;  Wa.shinfjton,  Ballinger's  Codes,  sec 
5269-5296;   Wyoming,  Rev.  Stats.,  sees.  3S93-3900. 


5IO  New  Book  of  Forms. 


No.  859. — Certificate — Foreclosure,  Sale  on, 

[Title  of  Court  and  Cause.] 

I,  P.  J.  W.,  sheriff  of  the  city  and  county  of  San  Francisco,  in 
the  state  of  California,  do  hereby  certify,  that  under  and  by  virtue 
of  an  order  of  sale,  issued  out  of  the  superior  court  of  the  city  and 
county  of  San  Francisco,  in  said  state  of  California,  in  the  action 
of  R.  F.  R.,  plaintiff,  against  J.  M.,  defendant,  rendered  on  the 
sixth  day  of  November,  1906,  and  entered  on  said  sixth  day  of 
November,  igo6,  duly  attested  the  seventh  day  of  November,  igo6, 
and  to  me,  as  such  sheriff,  duly  directed  and  delivered,  whereby 
I  was  commanded  to  sell  the  property  hereinafter  described,  ac- 
cording- to  law,  and  to  apply  the  proceeds  of  such  sale  toward  the 
satisfaction  of  the  judgment  in  said  action,  amounting  to  the  sum 
of  five  thousand  dollars,  gold  coin  of  the  United  States,  with  inter- 
est and  costs  of  suit,  I  duly  levied  on,  and  on  the  first  day  of  De- 
cember, ipo6,  at  12  o'clock,  noon,  in  front  of  the  City  Hall,  in  the 
city  and  county  of  San  Francisco,  I  duly  sold  at  public  auction,  ac- 
cording to  law,  and  after  due  and  legal  notice,  to  said  plaintiff,  R. 
F.  R.,  who  made  the  highest  and  best  bid  therefor,  at  such  sale, 
for  the  sum  of  five  thousand  tzvo  hundred  and  sixty-tzvo  dollars,  in 
gold  coin  of  the  United  States,  which  was  the  whole  sum  paid  by 
him  for  the  real  estate  in  said  order  of  sale,  described  as  follows, 
to  wit:  [Description.]  And  I  do  hereby  further  certify  that  the 
said  property  was,  by  direction  of  the  said  /.  M.,  sold  in  one  par- 
cel, and  that  the  sum  of  five  thousand  tzvo  hundred  and  sixty 
(5260)  dollars,  in  United  States  gold  coin,  was  the  highest  bid 
made,  and  the  whole  price  paid  therefor,  and  that  the  same  is 
subject  to  redemption  in  six  months,  pursuant  to  the  statute  in 
such  cases  made  and  provided. 

NOTE. — Substitute  "commissioner"  for  "sheriff"  when  necessary. 
It  is  a  mistake  to  think  (as  some  practitioners  do),  that  a  recitation  of 
the  facts  concerning  the  commissioner's  appointment,  etc.,  gives  weight 
to  the  instruments  he  executes.  It  docs  nothing  of  the  kind.  His  au- 
thority depends  upon  the  order  appointing  him,  and  that  is  a  court 
record:  California,  C.  C.  P.,  sec.  700;  Alaska,  Codes,  pt.  4,  c.  31,  sees.  265- 
300;  Arizona,  C.  C,  par.  2.575;  Idaho,  C.  C.  P.,  sec.  3552;  Montana,  C.  C. 
P.,  sees.  1231-1233;  Nevada,  Comp.  Laws,  sees.  3324,  3326,  3329,  3340; 
North  Dakota,  C.  C.  P.,  sec.  5538;  South  Dakota,  C.  C.  P.,  &ee.  373; 
Utah,  Bev.  Stats.,  sec.  3258. 


No.    860. — Certificate — Transcript. 

[Title  of  Court  and  Estate.] 

I,  W.  A.  S.,  county  clerk  of  the  city  and  county  of  San  Fran- 
cisco, state  of  California,  and  cx-officio  clerk  of  the  superior  court, 
in  and  for  the  said  city  and  county,  hereby  certify  that  I  have 


Certificate.  511 

compared  the  foreg'oing'  Transcript  with  the  orip^inal  papers  in  the 
above-entitled  action,  now  on  file  in  my  office,  and  with  all  orders 
therein  made  and  entered  on  the  minutes  of  said  court,  and  that 
the  said  Transcript  is  correct. 

I  further  certify,  that  a  sufficient  undertaking  on  appeal,  in  due 
form  of  law,  was,  on  the  tenth  day  of  May,  1^06,  properly  filed  in 
said  cause. 

NOTE.— California,  C.  C.  P.,  sees.  950-953. 


No.  86 1 . — Certificate — Judgment-roll. 
[Title  of  Court  and  Cause.] 

I,  the  undersigned,  county  clerk  of  the  county  of  San  Mateo, 
state  of  California,  and  ex-officio  clerk  of  the  superior  court  of 
said  county,  do  hereby  certify  the  foregoing  to  be  a  full,  true,  and 
correct  copy  of  the  judgment  entered  in  the  above-entitled  action, 
and  recorded  in  Judgment  Book  C,  of  said  court,  at  page  1/4. 
And  I  further  certify  that  the  foregoing  papers,  hereto  annexed, 
constitute  the  judgment-roll  in  said  action. 

NOTE.— ralifornia.  C.  C.  P.,  sec.  674.  As  to  making  of  same  by 
clerk,  see  Id.,  sec.  670. 


No.    862. — Certificate — Jurors — Service. 

In  the  Superior  Court  of  the  County  of  San  Luis  Obispo,  State 

of  California. 

I  hereby  certify  that  /.  H.  H.  was  summoned  and  served  as  a 
grand  juror  of  said  superior  court  during  the  month  of  August, 
jgod,  and  that  there  is  due  him  for  such  services  for 

Mileage    $4  00 

Per  diem   26  00 

Total    $30  00 

NOTE.— California,  Pol.  C,  sees.  4344-4346. 


No.  863. — Certificate,  Clerk's — Papers  on  File. 

Office  of  the  County  Clerk, 

Of  the  City  and  County  of  San  Francisco, — ss. 

I,  W.  A.  S.,  county  clerk  of  the  city  and  county  of  San  Fran- 
cisco, in  the  state  of  California,  and  ex-officio  clerk  of  the  superior 
court  of  the  said  city  and  county,  and  state  aforesaid,  hereby  cer- 
tify that  I  have  compared  the  foregoing  copy  widi  the  original 


e^i2  New  Book  of  Forms. 

complaint  in  the  above-entitled  action,  filed  in  my  ofRce  on  the 
tzL>enty-fourth  day  of  March,  1905,  and  that  the  same  is  a  full, 
true,  and  correct  copy  of  such  original,  and  of  the  whole  thereof. 
NOTE.— California,  C.  C.  P.,  sees.  1905,  1919-1922,  1924. 


No.  864.— Certificate — Clerk's  Minute  Order. 

Office  of  the  County  Clerk, 

Of  the  City  and  County  of  San  Francisco, — ss. 

I,  W.  A.  S.,  county  clerk  of  the  city  and  county  of  San  Fran- 
cisco, and  ex-ofiEicio  clerk  of  the  superior  court  thereof,  do  hereby 
certify  the  foregoing  to  be  a  full,  true,  and  correct  copy  of  the  or- 
der appointing  J.  R.  administrator,  with  will  annexed,  of  the  estate 
of  J.  D.,  deceased,  duly  made  and  entered  upon  the  minutes  of  the 
said  court,  and  that  I  have  compared  the  same  with  the  original ; 
that  it  is  a  correct  transcript  therefrom,  and  of  the  whole  thereof. 

NOTE. — California,  C.  C.  P.,  sec.  1905. 


No.  865. — Certificate — Admission  to  Practice  Law. 

In  the  Superior  Court  of  the  County  of  Sierra,  State  of  California. 

Be  It  Remembered;  That  S.  B.  D.,  Esquire,  was,  on  motion 
first  made  to  the  court  in  this  behalf,  by  P.  V.,  Esq.,  duly  admitted 
and  licensed  as  an  attorney  and  counselor  at  law  of  the  superior 
court  of  the  county  of  Sierra,  in  the  state  of  California,  on  the 
third  day  of  June,  ipo6. 

In  witness  whereof,  I,  H.  S.,  county  clerk  of  Sierra  county,  and 
ex-ofBcio  clerk  of  the  superior  court  of  said  county,  have  hereunto 
set  may  hand  and  affixed  the  seal  of  said  court  at  DownievHie  this 
third  day  of  June,  igo6. 

NOTE. — Calif  orma,  C.  C.  P.,  see.  277. 

No.  866. — Certificate,  Notary  Public's. 

I,  F.  B.  W.,  a  notary  public  in  and  for  said  county,  do  hereby 
certify  that  the  witness  in  the  foregoing  deposition,  named  7.  A., 
was  by  me  duly  sworn ;  that  said  deposition  was  then  taken  at 
the  tirne  and  place  mentioned  in  the  annexed  order,  to  wit,  at  my 
office,  in  the  county  of  Plumas,  state  of  California,  and  on  the  first 
day  of  March,  1906,  between  the  hours  of  10  ^.  M._  and  4  P.  M.  of 
that  day;  that  said  deposition  was  reduced  to  writing  by  me,  and, 
when  completed,  was  by  me  carefully  read  to  said  witness,  and 
being  by  him  corrected,  was  by  him  subscribed  in  my  presence. 

NOTE.— California,  C.  C.  P.,  sec.  2032. 


Certificate.  513 


No.  867. — Certificate,  Clerk's,  to  Writing  or  Signature. 

State  of  California, 
County  of  San  Mateo, — ss. 

I,  H.  W.,  county  clerk  of  the  county  of  San  Mateo,  state  of 
California,  and  clerk  of  the  superior  court  of  said  San  Mateo 
county  (zvhich  is  a  court  of  record),  do  hereby  certify  that  G.  W. 
F.,  whose  name  is  subscribed  to  the  annexed  instrument,  was,  at 
the  date  of  the  same,  and  is  now,  a  fwtary  public  in  and  for  said 
San  Mateo  county,  commissioned  and  qualified,  and  authorized  by 
law  to  administer  oaths  and  take  acknozvledgments  of  instruments, 
and  full  faith  and  credit  are  due  to  all  his  official  acts  as  such. 
And  I  do  further  certify  that  I  am  acquainted  with  his  hand- 
writing and  the  signature  attached  to  the  annexed  original  in- 
strument is,  I  believe,  his  proper  signature  and  is  genuine. 

NOTE. — California,  C.  C,  sec.  1194.  It  is  used  when  the  instrument 
to  which  it  is  attached  is  to  be  returned,  or  sent  to  a  place  out  of  the 
state.  It  is  usually  attached  to  certificates  of  acknowledgment — a  jua- 
tiee's  or  commissioner's. 


No.  868.— Certificate,   Clerk's — General.  [ 

State  of  Ccdifornia, 

City  and  County  of  San  Francisco, — ss. 

I,  W.  A.  S.,  county  clerk  of  the  city  and  county  of  San  Fran- 
cisco, state  of  California,  and  clerk  of  the  superior  court,  do  hereby 
certify  that  the  foregoing  is  a  full,  true,  and  correct  copy  of  an 
answer  [or  other  instrument],  with  the  indorsements  thereon,  re- 
maining on  file  in  this  office. 

NOTE.— California,  C.  C.  P.,  sees.  1905,  1919,  1922,  1924. 


No.  869. — Certificate — Decree,  to — Copy  of. 

Office  of  the  County  Clerk, 

Of  the  City  and  County  of  San  Fran-cisco, — ss. 

I,  W.  A.  S.,  county  clerk  of  the  city  and  corinty  of  San  Fran- 
cisco, state  of  California,  and  ex-officio  clerk  of  the  superior  court 
of  said  city  and  county,  hereby  certify  the  foregoing  to  be  a  full, 
true  and  correct  copy  of  the  original  decree  in  the  above-entitled 
cause,  filed  in  my  office  on  the  thirtieth  day  of  November,  igo6, 
and  that  the  same  was  entered  of  record  on  the  fourth  day  of  De- 
cember, IQ06,  in  Judgment  Book  H,  page  ^p/. 

NOTE.— California,  C.  C.  P.,  sees.  1905,  1919,  1922,  1924. 
New  Forms — 33 


514  ^^Sw  Book  of  Forms. 


CITATION. 


No.  870. — Citation — Court  to  Administrator. 
[Title  of  Court  and  Cause.] 

More  than  six  months  having  expired  since  A.  B.  was  appointed 
administrator  of  the  estate  of  C.  D.,  deceased,  and  he  has  failed  to 
render  an  exhibit  under  oath  as  directed  by  law ;  it  is  ordered  that 
a  citation  issue  commanding  him  to  render  such  exhibit  within 
ten  days  from  the  date  of  service  of  said  citation. 

NOTE. — A  court  or  judge  must  cause  a  citation  to  issue  under  such 
circumstances:  Cal.  C.  C.  P.,  sees.  1623,  1624;  Arizona,  C.  C,  pars.  185-5, 
1856,  1862:  Idaho.  C.  C.  P.,  sees.  4243,  4244;  Montana,  C.  C.  P.,  sees. 
2781,  27S2;  Nevada,  Comp.  Laws,  sec.  2972;  Oregon,  Codes  and  Statutes, 
pec.  1200;  Washington.  Ballinger's  Codes,  sees.  6316,  6317;  Wyoming, 
Rev.  Stats.,  sees.  4713,  4714. 


No.  871. — Citation — Juvenile  Court. 
[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California  to  A.  B.,  Custodian  of, 
C.  D.,  a  Minor  Child  of  M.  D.: 

You  are  hereby  cited  and  required  to  appear  before  this  court 
in  the  county  of  Butte,  state  of  California,  at  the  courtroom,  on 
the  ^d  day  of  June,  A.  D.  IQ06,  at  i  o'clock  A.  M.,  of  that  day 
and  bring  said  child  with  you,  and  then  and  there  to  show  cause, 
if  any  you  have,  why  said  child  should  not  be  declared  to  be 
delinquent  child,  according  to  the  petition  on  file  herein. 

And  for  failure  to  attend  and  bring  said  child  wil.h  you,  you 
*rill  be  deemed  guilty  of  a  contempt  of  court. 


No.  872. — Citation  to  Shov^  Cause. 

/Title  of  Court  and  Estate.] 

The  people  of  the  State  of  California  to  F.  W,  and  H.  W.,  Greet- 
ing: 
By  order  of  this  court,  you  are  hereby  cited  and  required  to 
appear  before  the  judge  of  this  court,  at  the  courtroom  thereof, 
at  the  City  Hall,  in  the  city  and  county  of  San  Francisco,  on 
Saturday,  the  tenth  day  of  December,  igo6,  at  eleven  o'clock  in 
the  forenoon  of  that  day,  then  and  there  to  show  cause,  if  any  vou 
have,  why  M.  J.,  the  mother  of  said  minors,  W.  J.,  C.  J.,  and 


CrfATioN.  515 

E.  J.,  children  of  T.  J.,  late  of  said  city  and  county,  deceased, 
should  not  be  appointed  the  guardian  of  the  persons  and  estates 
of  the  said  minors. 

Witness,  the  Honorable  /.  F.  F.,  judge  of  the  said  superior 
court  in  and  for  the  city  and  county  of  San  Francisco,  state  of 
California,  with  the  seal  of  said  court  affixed,  this  the  third  day 
of  December,  ipo6. 

NOTE. — In  California  a  citation  must  hf  directed  to  the  person  to 
be  cited,  signed  by  the  clerk,  and  issued  under  the  seal  of  the  court, 
and  must  contain:  1.  The  title  of  the  proceeding;  2.  A  brief  statement 
of  the  nature  of  the  proceeding;  3.  A  direction  that  the  person  cited 
appear  at  a  time  and  place  specified.  It  may  be  issued  by  the  clerk 
upon  the  application  of  any  party  without  an  order  of  the  judge,  ex- 
cept in  cases  in  which  such  order  is  by  law  expressly  required.  It 
must  be  served  in  the  same  manner  as  a  summons  is  served:  C.  C.  P.,  sees. 
1707,  1709,  1710.  If  necessary,  a  citation  may  be  served  by  publication 
in  like  manner  of  a  summons:  Trumpler  v.  Cotton,  109  Cal.  250.  Alaska 
Codes,  pt.  4,  e.  81,  sees.  775,  810,  813,  836,  860,  910;  Arizona,  C.  C,  pars. 
1928,  1929,  1931,  Idaho,  C.  C.  P.,  sees.  4307,  4308,  4310;  Montana,  C.  C. 
P.,  sees.  2914,  2915,  2917;  Nevada,  Comp.  Laws,  sec.  3033;  New  Mexico, 
Comp.  Laws.  sees.  1986,  2007,  2009,  2067;  North  Dakota,  Probate  Code, 
sees.  6191,  6204,  6212,  6291,  6292,  6487,  6581;  Oregon,  Codes  and  Statutes, 
sec.  1148;  South  Dakota,  Probate  Code,  sees.  56,  106,  110.  115,  203, 
273,  335,  337;  Utah,  Rev.  Stats.,  sec.  4034;  Washington.  Ballinger's 
Codes,  sec.  6081;  Wyoming,  Rev.  Stats.,  sees.  4544,  4545,  4547. 


No.  873. — Citation — Executor  on  Petition  for  Distribution. 
[Title  of  Court  and  Cause.] 
/.  C.  R.,  Executor  of  the  Will  of  S.  D.,  Deceased,  Greeting: 

You  are  hereby  cited  to  be  and  appear  in  our  superior  court  of 
the  city  and  county  of  San  Francisco,  at  the  courtroom  of  Depart- 
ment No.  10 — Probate — thereof,  at  the  City  Hall,  in  said  city  and 
county  of  San  Francisco,  on  Monday,  the  29th  day  of  May,  A.  D. 
1905,  at  10  o'clock,  A.  M.,  of  that  day,  then  and  there  to  show 
cause,  if  any  you  have,  why  the  petition  of  M.  G.  S.,  and  of  the 
M.  T.  Company  of  San  Francisco,  as  the  executor  of  the  will  of 
H.  W.  D.,  deceased,  for  a  partial  distribution  to  them  of  the  es- 
tate of  the  said  S.  D.,  should  not  be  granted. 

NOTE.— California,  C.  C.  P.,  sec.  1659;  Arizona,  C.  C,  par.  1887; 
Idaho,  C.  C.  P.,  sec.  4271;  Montana,  C.  C.  P.,  sec.  2831;  Nevada.  Comp'. 
Laws,  sec.  2994;  Oregon,  Codes  and  Statutes,  sec.  1223;  T'tah,  Rev. 
Stats.,  sec.  3948;  Washington,  Ballinger's  Codes,  see.  6348:  Wyoming 
Bev.   Stata^   sec.   4827. 


5i6  New  Book  of  Forms. 


No.   874. — Citation   to   Banker  to   Appear  and  Answer  as  to 
Unclaimed   Deposit. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California,  to  the  C.  S.  and  L.  S.,  its 
President,  Secretary,  Cashier,  Treasvirer,  or  Other  Officer  or 
Off.cers  Having:  Charsfe  and  Custody  of  Its  Books,  Registers 
or  Papers  Containing  Names,  Signatures,  or  Other  Marks  of 
Identification  of  Its  Depositors,  Greeting: 

You  are  hereby  cited  to  be  and  appear  in  our  superior  court  of 
the  city  and  county  of  San  Francisco,  at  the  courtroom  of  Depart- 
ment No.  2 — Probate — thereof,  at  the  City  Hall,  in  said  city  and 
county  of  San  Francisco,  on  Tuesday,  the  21st  day  of  February, 
A.  D.  ipo^,  at  g:4j  o'clock  A.  M.  of  that  day,  then  and  there  to 
show  cause,  if  any  you  have,  why  an  order  of  this  court  should 
not  be  made  requiring  you  to  deliver  to  W.  A.,  as  administrator  of 
the  estate  of  the  above-named  A.  A.,  deceased,  such  sum  as  may 
be  due  and  unpaid  on  a  certain  deposit  made  in  the  said  C.  S.  and 
L.  S.  by  a  person  of  that  name,  either  under  said  name  or  under 
the  name  of  A.  M.  or  A.  M.  A.,  amounting  to  $1,251.46,  or  there- 
abouts ;  and  then  and  there  to  bring  and  have  with  you  any  and 
all  books,  registers  and  papers  of  said  society  containing  any  en- 
try or  entries  referring  to  said  A.  M.,  or  A.  M.  A.,  and  to  be 
examined  on  oath  concerning  the  same. 

NOTE.— California,  C.  C.  P.,  sec.  1461;  Arizona,  C.  C,  par.  1724; 
Idaho,  C.  C.  P.,  sec.  4118;  Montana,  C.  C.  P.,  sec.  2573;  Nevada,  Comp. 
Laws,  sec.  2884;  North  Dakota,  Probate  Code,  see.  6581;  Oregon,  Codes 
and  Statutes,  sec.  1151;  Washington,  Ballinger's  Codes,  sec.  6214;  W70- 
ming,  Eev.  Stats.,  sec.  4692. 


No.  875. — Citation  to   Savings  Bank — Answer  to. 
[Title  of  Court  and  Cause.] 

Now  comes  the  C.  S.  and  L.  S.,  and  responding  to  the  citation 
issued  in  the  above-entitled  matter  and  addressed  to  the  respond- 
ent: 

T.  Here  it  appears,  and  by  its  secretary  produces  for  inspection 
all  books  and  papers  in  the  possession  or  control  of  said  respondent 
containing  any  entry  referring  to  A.,  A.  M.,  or  A.  M.  A.,  and  is 
ready  to  be  examined  on  oath,  or  otherwise,  concerning  the  same. 

2.  As  to  any  and  all  other  requirements  of  said  citation,  said 
respondent  objects  and  demurs  thereto,  and  says  that  this  court 
has  no  right,  authority  or  jurisdiction  in  said  matter  of  said  estate 
to  make  said  requirements,  or  any  or  either  of  them,  this  resix>nd- 
ent  here  claiming  the  right  to  have  a  determination  of  all  the  mat- 


Citation.  517 

ters  of  said  other  requirements,  namely,  as  to  its  rights  and  ob- 
ligations under  the  alleged  deposit  of  moneys  by  A.  A.,  with  re- 
spondent, as  a  savings  bank,  made  and  adjudicated  by  a  court  of 
law  or  equity  in  such  action  or  proceeding  as  will  be  finally  de- 
terminative of  the  said  rights  and  obligations  of  respondent  in 
respect  to  or  growing  from  said  alleged  deposit  with  it,  and  pro- 
tect this  respondent  in  complying  with  the  final  determination 
and  adjudication  of  such  court  in  such  action. 

And.  this  respondent  hereby  demurs  to  all  and  all  parts  of  the 
petition  of  W.  A.,  upon  which  said  citation  was  issued  and  is 
based,  save  that  alleging  that  respondent  has  books  containing  en- 
tries tending  to  disclose  the  identity  of  A.  A.  as  a  depositor  of  re- 
spondent S.  S.,  with  the  deceased,  in  whose  estate  said  petition 
is  filed  and  asking  the  production  and  inspection  of  said  books, 
upon  the  grounds: 

1.  That  this  court  in  this  proceeding  has  no  jurisdiction  of  the 
person  of  this  respondent,  nor  of  the  subject  of  said  parts  of  said 
petition. 

2.  That  said  parts  of  said  petition  and  the  allegations  there- 
of do  not  constitute  a  cause  of  action  herein  against  this  respond- 
ent, nor  show  any  cause  for  the  relief  by  said  parts  of  said  petition 
sought  and  prayed  for. 

Wherefore  respondent  asks  that  said  citation  and  the  order  to 
show  cause  therein  contained  be  discharged. 

NOTE. — California,  C.  C,  sees.  1459,  1460;  Arizona,  C.  C,  par.  1722; 
Idaho,  C.  C.  P.,  sec.  4116;  Montana,  C.  C.  P.,  see.  2571;  Nevada  Coinp. 
Laws,  see.  2882;  Oregon,  Codes  and  Statutes,  sec.  1148;  Utah,  Rev. 
Stats.,  sec.  3927;  Washington,  Ballinger's  Codes,  sec.  6212;  Wjomiug, 
Eev.  Stats.,  sec.  4690. 


No.  876. — Citation — Inheritance  Tax. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  Cahfomia,  to  A.  B.,  Greeting: 

You  are  hereby  cited  to  be  and  appear  in  our  superior  court  of 
the  county  of  Napa,  at  the  courtroom  thereof,  in  said  county,  on 
the  3d  day  of  Jutie,  A.  D.  jpo6,  at  10  o'clock  A.  M.,  of  said  dav, 
to  show  cause  why  you  should  not  pay  an  inheritance  tax  imposed 
upon  the  property  of  the  above-entitled  estate,  in  which  vou  are 
interested,  as  provided  by  the  laws  of  the  state  of  California,  es- 
tablishing a  tax  on  gifts,  legacies,  inlieritances,  bequests,  devises, 
successions  and  transfers. 

NOTE.— Act  of  March  20,  1905;  Stats.,  p.  341,  sees.  17,  20. 


5i8  New  Book  of  Forms. 


COMMITMENT. 


No.  877. — Commitment  to  Prison — GeneraL 
[Title  of  Court  and  Cause.] 

The  district  attorney,  with  the  defendant  and  his  counsel,  came 
into  court.  The  defendant  was  duly  informed  by  the  court  of  the 
nature  of  the  charge  against  him  for  the  crime  of  petit  larceny, 
committed  on  the  fifth  day  of  July>  igo6,  of  his  indictment  [or 
of  the  information  filed  against  him],  arraignment,  and  plea  of 
"Not  guilty  of  the  offense  charged  in  the  indictment"  [informa- 
tion], of  his  trial  and  the  verdict  of  the  jury,  on  the  third  day  of 
August,  1906,  "Guilty  as  charged  in  the  indictment"  [informa- 
tion], and  the  defendant  was  then  asked  if  he  had  any  legal  cause 
to  show  why  judgment  should  not  be  pronounced  against  him. 
To  which  he  replied  that  he  had  none.  And  no  sufficient  cause  be- 
ing shown  or  appearing  to  the  court,  thereupon  the  court  rendered 
its  judgment  as  follows:  That  whereas  the  said  /.  S.,  having 
been  duly  convicted  in  this  court  of  the  crime  of  petit  larceny  [or 
other  crime]  : 

It  is  therefore  ordered,  adjudged  and  decreed,  that  the  said  /.  S. 
be  punished  and  imprisoned  in  the  county  jail  of  the  county  of 
San  Mateo,  in  the  state  of  California,  for  the  term  of  one  year. 
The  defendant  was  then  remanded  to  the  custody  of  the  sheriff  of 
the  said  county  [or  in  the  state  prison]. 

Office  of  the  County  Clerk, 

Of  the  County  of  San  Mateo,  State  of  California. 

I.  H.  W.,  county  clerk  of  the  county  of  San  Mateo,  state  of 
California,  do  hereby  certify  the  foregoing  to  be  a  full,  true,  and 
correct  copy  of  the  judgment  duly  made  and  entered  on  the 
minutes  of  the  said  superior  court  in  the  above-entitled  action, 
and  that  I  have  compared  the  same  with  the  original ;  that  the 
same  is  a  correct  transcript  therefrom,  and  of  the  whole  thereof. 

Attest  my  hand  and  seal  of  the  said  superior  court,  this  fifth 
day  of  August,  ipo6. 

'[Seal]  H.  W.,  Clerk. 

By  P.  S.,  Deputy  Clerk. 

indorsed  as  IfOLLOWS: 

[Title  of  Court  and  Cause.] 

Whereas,  /.  S.,  having  been  duly  convicted  in  the  superior  court 
of  the  county  of  San  Mateo  of  the  crime  of  petit  larceny,  and 


Commitment.  519 

judgment  having  been  pronounced  against  him,  that  he  be  pun- 
ished by  imprisonment  in  the  county  jail  of  the  county  of  San 
Mateo,  in  the  state  of  California,  for  the  term  of  one  year.  All 
of  which  appearing  to  us  of  record,  and  a  certified  copy  of  the 
judgment  being  indorsed  hereon  and  made  a  part  thereof: 

Now,  this  is  to  command  you,  the  said  sheriff  of  the  county  of 
San  Mateo,  to  take  and  safely  keep  and  imprison  the  said  /.  S.  in 
the  county  jail  of  the  said  county  of  San  Mateo,  state  of  Cali- 
fornia, for  the  term  of  one  year.  And  these  presents  shall  be 
your  authority  for  the  same. 

Herein  fail  not. 

Witness,  Honorable  E.  F.  H.,  judge  of  the  superior  court  of  the 
county  of  San  Mateo,  this  Hfth  day  of  August,  igo6. 

Attest  my  hand  and  the  seal  of  the  said  court  the  day  and  year 
last  above  written. 

NOTE.— California,  Pen.  C,  sees.  1017,  1207,  1213.  In  all  other  states 
and  territories  this  form  may  be  used. 


No.  878. — Commitment — Juvenile  Court 
[Title  of  Court  and  Cause.] 

The  above-named  C.  D.  having  been  brought  before  the  superior 
court  of  the  state  of  California  in  and  for  the  county  of  Butte, 
upon  the  order  and  certification  of  the  superior  court  of  the  said 
county,  as  a  delinquent  child  charged  in  said  superior  [juimilc] 
court  with  the  offense  of  malicious  mischief,  and  upon  a  full  hear- 
ing in  this  court  had  on  the  jd  day  of  June,  A.  D.  ipo6,  after 
due  notice  given,  it  appearing  that  it  is  for  the  best  interest  of 
said  child  that  he  should  be  committed  to  the  care  of  A.  B.  E.  D. 
for  the  period  of  six  months. 

Now,  therefore,  it  is  hereby  ordered  and  adjudged  that  said 
C.  D.  be  committed  to  the  care  of  A.  B.  E.  D.  for  the  period 
of  six  months. 


No.  879. — Commitment — Juvenile  Court. 

[Title  of  Court  and  Cause.] 

The  above-named  A.  B.  having  been  regularly  brought  before 
the  above-entitled  court  upon  petition  duly  verified  and  filed 
herein  as  provided  by  law,  said  petition  showing  that  said  A.  B. 
is  within  said  county  of  Butte  and  is  a  dependent  child  within 
the  meaning  of  the  law,  and  due  notice  of  the  hearing  of  said 
petition  having  been  given  as  required  by  law  and  the  order  of 
this  court,  and  due  return  having  been  made  on  the  citation  is- 
sued herein,  upon  a  full  hearing  of  said  petition  and  of  the  case, 
it  appearing  to  the  satisfaction  of  tlie  court  that  said  A.  B.  is 


520  New  Book  of  Forms. 

under  the  age  of  sixteen  years,  to  wit,  of  the  age  of  ten  years 
and  within  said  county  of  Butte,  and  is  a  dependent  child  within 
tlie  meaning  of  the  law;  and  it  further  appearing  that  it  is  for 
the  best  interest  of  said  child  that  he  be  committed  to  the  care 
of  E.  F.;  it  appearing  that  said  E.  F.  is  a  proper  person  io  have 
such  case,  and  that  said  E.  F.  is  willing  to  receive  said  child, 
if  committed  thereto  by  this  court. 

Now,  therefore,  it  is  hereby  ordered,  adjudged  and  decreed  that 
said  A.  B.  is  a  dependent  child  within  the  meaning  of  the  law, 
and  that  he  be,  and  he  is  hereby,  committed  to  the  care  of  E.  F., 
for  the  period  of  one  year. 


COMPLAINT— PLEADINGS. 


No.  880. — Complaint — Acceptor,  Without  Funds,  vs.  Drawer. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains  and  alleges: 

1.  That  on  the  fourteenth  day  of  March,  igo6,  at  M.,  the  de- 
fendant became  indebted  to  him  for  money  advanced  by  him,  and 
paid  by  him,  upon  a  certain  draft  drawn  by  the  defendant,  bear- 
ing date  on  the  fourteenth  day  of  February,  IQ06,  whereby  the  de- 
fendant requested  the  plaintiff,  thirty  days  after  date,  to  pay  to  one 
A.  B.,  the  sum  of  $500. 

2.  That  on  the  fourteenth  day  of  March,  ipo6,  at  M.,  the  plain- 
tiff accepted  said  draft,  and  paid  it. 

[Or,  2.  That  the  plaintiff'  accepted  said  draft,  and  paid  the 
same  at  maturity.] 

3.  That  at  the  time  of  the  acceptance  and  payment  of  said 
draft,  the  plaintiff  was  without  funds  of  the  defendant  in  his 
hands  to  meet  the  same. 

4.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 


No.  881. — Complaint — Administrator,  by. 

[Title  of  Court  and  Cause.] 

The  plaintiff,  as  such  administrator,  complains,  and  alleges: 

1.  [State  cause  of  action  accruing  to  the  intestate.] 

2.  That  on  the  twenty-first  day  of  February,  ipo6,  at  A'".,  the 
said  A.  B.  died  intestate. 

3.  That  on  the  tiventy-Hfth  day  of  February,  IQ06,  letters  of 
administration  upon  the  estate  of  the  said  A.  B.  were  issued  by 


Complaint — Pleadings.  521 

the  superior  court  of  the  county  of  Fresno,  in  this  state,  to  the 
plaintiff. 

4.  That  the  plaintiff  thereupon  duly  qualified  as  such  admin- 
istrator, and  entered  upon  the  discharge  of  the  duties  of  his  said 
office,  and  that  said  letters  of  administration  have  not  been 
revoked. 

No.  882. — Complaint — Administrator  or  Executor. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains  and  alleges: 

1.  [State  cause  of  action  against  the  decedent.] 

2.  [Allege  death  of  decedent,  and  defendant's  appointment  as 
admifiistrator  or  executor,  as  in  preceding  forms.] 

3.  That  said  defendant,  as  such  executor  [or  administrator],  in 
pursuance  of  an  order  of  the  superior  court  of  San  Diego  county 
caused  a  notice  to  creditors  of  said  deceased  to  be  published  in 
the  Nezvs,  the  same  being-  the  newspaper  designated  by  said  court, 
requiring  all  persons  having  claims  against  said  deceased  to  ex- 
hibit them,  with  the  necessary  vouchers,  to  the  said  executor  [or 
administrator],  at  [specify  the  place],  the  same  being  specified 
therein  as  his  place  of  business,  within  ten  months  after  the  first 
publication  of  said  notice;  that  said  notice  was  first  published 
on  the  eighth  day  of  June,  ipo6. 

4.  That  on  the  tzventy-scveuth  day  of  May,  ipo6,  at  M..  the 
claim  hereinbefore  set  forth,  verified  by  the  oath  of  the  claimant, 
and  upon  which  this  action  is  founded,  was  duly  presented  in 
writing  by  the  plaintiff  to  the  defendant,  as  such  administrator 
[or  executor],  for  allowance.  And  that  the  same  was  by  him,  as 
such  administrator  [or  executor],  rejected  on  the  thirty--first  day 
of  May,  ipo6:  that  a  copy  of  said  claim  as  presented  is  hereunto 
attached  and  made  a  part  of  this  complaint. 

No.   883. — Complaint — Arrest,   Malicious,   for. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  first  day  of  August,  igo6,  the  defendant,  ma- 
liciously intending  to  injure  the  plaintiff,  made  affidavit,  and  pro- 
cured one  A.  B.  to  make  an  affidavit,  in  an  action  brought  against 
this  plaintiff  by  defendant,  in  which  he  alleged  [set  forth  the 
grounds  of  the  false  arrest]  ;  and  that  upon  said  affidavits  the 
defendant  caused  to  be  issued  an  order  of  arrest  against  this 
plaintiff,  under  which  the  plaintiff  was  arrested  and  imprisoned 
for  the  space  of  twenty  days,  and  compelled  to  give  bail  in  the 
sum  of  $1,000. 

2.  That  in  so  doing  the  defendant  acted  maliciously  and  with- 
out probable  cause. 


522  New  Book  of  Forms. 

3.  That  on  the  fifteenth  day  of  August,  ipo6,  said  order  was 
vacated  by  said  court,  upon  the  ground  that  [set  forth  tlie  grounds 
upon  which  it  zi'os  vacated]. 

[Or,  3.  That  on  the  twenty-fifth  day  of  August,  igo6,  such 
proceedings  were  had  in  such  action,  that  it  was  finally  deter- 
mined in  favor  of  this  plaintiff,  and  judgment  was  rendered  for 
him  therein.] 

4.  [Special  damage.]  That  many  persons,  whose  names  are 
unlcnown  to  plaintiff,  hearing  of  the  arrest,  etc.,  to  the  damage  to 
the  plaintiff  $2,/^o. 


No.  884. — Complaint — Assignee — Trust,  Wife,  for, 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges : 

1.  [Allege  incorporation  as  heretofore.] 

2.  [Same  as  by  executor  on  life  policy.] 

3.  That  on  the  first  day  of  March,  igo6,  the  said  A.  B.  [with 
the  written  consent  of  the  defendants,  or  otherwise,  according  to 
the  terms  of  the  policy] ,  assigned  said  policy  of  insurance  to  this 
plaintiff,  in  trust  for  E.  B.,  his  wife. 

4.  That  up  to  the  time  of  the  death  of  A.  B.  all  premiums  ac- 
crued upon  said  policy  were  fully  paid. 

5.  That  on  the  fifth  day  of  June,  1906,  at  L.,  said  A.  B.  died. 

6.  That  said  A.  B.  and  the  plaintiff  each  performed  all  the 
conditions  of  said  insurance  on  their  part,  and  the  plaintiff,  more 
than  ten  days  before  the  commencement  of  this  action,  to  wit,  on 
the  tenth  day  of  June,  ipo6,  at  L.,  gave  to  defendants  notice  and 
proof  of  the  death  of  said  A.  B.,  as  aforesaid,  and  demanded  pay- 
ment of  the  said  sum  of  $10,000. 

7.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 


No.  885. — Complaint — Assignee  for  Creditors. 
[Title  of  Court  and  Cause.] 

The  plaintiff,  as  assignee  for  the  benefit  of  the  creditors  of  A. 
B.,  complains  of  the  defendant  and  alleges : 

1.  [State  a  cause  of  action  accrued  to  the  assignor.] 

2.  That  on  the  ninth  day  of  August,  1906,  at  S.  P.,  the  said  A. 
B.  assigned  all  his  property,  including  the  said  claim  to  the  plain- 
tifif  [in  trust  for  the  purpose  of  paying  all  his  debts], 

[Demand  of  judgment.] 


COMPI.AINT — Pl^EADINCS.  523 


No.  886. — Complaint — Attorney  for  Negligence. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  the  defendant  is,  and  at  all  the  times  hereinafter  men- 
tioned was,  an  attorney  of  the  supreme  court  of  this  state;  that 
the  plaintiff,  on  or  about  the  month  of  January,  ipo6,  retained 
and  employed  him  as  such  attorney  to  prosecute  and  conduct  an 
action  in  the  superior  court  of  the  county  of  Vuba,  state  afore- 
said, on  behalf  of  this  plaintiff,  against  one  A.  B.,  for  the  recovery 
of  $1,500  due  from  him  to  this  plaintiff  and  the  defendant  under- 
took to  prosecute  said  action  in  a  proper,  skillful  and  diligent  man- 
ner, as  the  attorney  for  the  plaintiff. 

2.  That  the  defendant  might,  in  case  he  had  prosecuted  said 
action  with  due  diligence  and  skill,  have  obtained  final  judgment 
therein  for  this  plaintiff  before  the  twenty-fifth  day  of  March, 
igo6,  but  he  so  negligently  and  unskillfully  conducted  said  ac- 
tion, that  by  his  negligence,  delay  and  want  of  skill  he  did  not 
obtain  judgment  until  the  twentieth  day  of  May,  1906,  and  that 
meanwhile  said  A.  B.  had  become  insolvent;  whereby  the  plain- 
tiff was  hindered  and  deprived  of  the  means  of  recovering  said 
sum  of  money,  and  that  the  same  has  not,  nor  has  any  part 
thereof,  been  recovered  or  made  by  plaintiff,  to  his  damage 
$1,500. 


No.   887. — Complaint — Bills,   Foreign — Payee  vs.   Drawcr. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges : 

1.  That  on  the  sixth  day  of  March,  ipo6,  at  M.,  the  defend- 
ant made  and  delivered  to  the  plaintiff  his  certain  bill  of  exchange 
of  that  date,  of  which  the  following  is  a  copy:   [Copy  the  bill.] 

2.  That  on  the  sixth  day  of  May,  igo6,  the  same  was  duly 
presented  to  the  said  A.  B.  for  acceptance,  but  was  not  accepted, 
and  was  thereupon  duly  protested  for  nonacceptance. 

3.  That  due  notice  thereof  was  given  to  the  defendant. 

4.  That  he  has  not  paid  the  same. 

5.  That  the  value  of  a  similar  bill  of  exchange  at  the  time  of 
said  protest,  in  M.,  that  being  the  place  where  said  bill  was  nego- 
tiated, and  where  such  bills  were  currently  sold,  was  ^7,000. 

Wherefore,  the  plaintiff  demands  judgment  against  the  defend- 
ant for  the  sum  of  ^7, 000  (the  amount  named  in  the  bill)  and 
$200  damages,  and  interest  on  the  said  sums  from  the  sixth  day 
of  May,  ipod  [date  of  protest],  and  costs  of  suit. 


524  New  Book  of  Forms. 


No.  888. — Complaint — Bond,  Official,  on. 

[Title  of  Court  and  Canse.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant,  on  the  tzventy-ninth  day  of  June,  ipo6, 
at  P.,  made  and  delivered  his  bond,  or  writing  obligatory,  sealed 
with  his  seal,  of  which  the  following  is  a  copy:  [Copy  bond.] 

[Set  forth  breach.] 

[Defnand  of  judgment.] 

No.  88g. — Complaint — Borrower  vs. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  sixth  day  of  January,  ipo6.  at  P.,  he  lent  to 
the  defendant,  at  his  request,  $500. 

2.  That  the  defendant  has  not  paid  the  same  nor  any  part 
thereof. 

Wherefore,  the  plaintiff  demands  judgment  for  $500,  with  in- 
terest from  the  sixth  day  of  January,  igo6. 


Mo.  890. — Complaint — Builder  vs. — Special  Damage  for  Loss 

of  Rent. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  fourteenth  day  of  May,  igo6,  at  P.,  the  plain- 
tiff and  the  defendant  entered  into  an  agreement,  under  their 
hands  and  seals,  of  which  a  copy  is  annexed  as  a  part  of  this 
complaint,  marked  "Exhibit  A." 

2.  That  the  plaintiff  duly  performed  all  the  conditions  thereof 
on  his  part. 

3.  That  the  defendant  entered  upon  the  performance  of  the 
work  under  said  contract,  but  has  neglected  to  finish  the  said 
contract  [state  what  he  has  neglected],  and  that  although  the 
time  for  the  completion  of  said  building  expired  before  the  com- 
mencement of  this  action,  he  neglects  and  refuses  to  complete  the 
same. 

4.  That  the  plaintiff,  on  the  fifteenth  day  of  June,  igo6, 
at  P.,  made  an  agreement  with  one  A.  B.,  whereby  he  agreed  to 
let,  and  said  A.  B.  agreed  to  hire,  the  said  building  for  ttvo 
months,  from  the  sixteenth  day  of  June,  IQ06,  to  the  sixteenth 
day  of  August,  ipo6,  at  the  monthly  rent  of  $2jo,  of  which  the 
defendant  had  notice. 


Complaint — Pleadings.  525 

5.  That  by  reason  of  the  defendant's  faihire  to  complete  the 
contract  aforesaid  on  his  part,  the  plaintiff  has  been  unable  to 
give  said  A.  B.  occupancy  thereof,  and  has  been  thereby  dei)rived 
of  the  profits  of  said  lease,  to  his  damage  $750  gold  coin, 

[Annex  agreement  marked  "ExJiibit  A."] 


No.  891. — Complaint — Cattle,  Trespassing, 
[Title  of  Court  and  Cause.] 

The  plaintiff  complains,  and  alleges: 

1.  That  during  all  the  times  hereinafter  mentioned  he  was, 
and  now  is,  the  owner,  and  lawfully  in  possession  of  all  that  cer- 
tain real  estate  situated  in  K.  Township,  county  of  Sierra,  state 
of  California,  and  described  as  follows:   [Description.] 

2.  T'.iat  during  all  of  the  time  between  the  fourteenth  day  of 
February,  IQ06,  and  the  third  day  of  March,  igo6,  the  defendant 
was  the  owner,  in  possession  of,  and  chargeable  with  the  care  of 
certain  animals,  to  wit:  sheep. 

3.  That  at  divers  times  between  said  last  mentioned  dates 
said  animals  ran  and  trespassed  upon  said  lands,  ate  up,  injured, 
and  destroyed  the  grain,  hay,  and  verdure  being  and  growing 
thereon. 

4.  That  in  consequence  of  said  animals  so  running,  trespass- 
ing, eating  up,  injuring,  and  destroying  the  said  grain,  hay,  and 
verdure,  which  was  then  upon  said  land,  plaintifif  has  been  dam- 
aged in  the  sum  of  $2^0. 


No.  892, — Complaint — Claim  and  Delivery, 
[Title  of  Court  and  Cause.] 

W.  J.  H.,  the  plaintiff,  in  the  above-entitled  action,  complain- 
ing of  G.  T.,  the  defendant,  in  the  said  action,  alleges: 

That  on  the  fourth  day  of  June,  iQod,  at  the  county  of  Sacra- 
mento, said  plaintiff  was,  and  now  is,  the  owner  and  entitled  to 
the  possession  of  the  following  described  personal  property,  to 
wit:   [Description.] 

That  said  personal  property  is  of  the  value  of  orie  t/iousand 
dollars. 

That  said  defendant  on  the  fourth  day  of  June,  ipo6,  at  the 
city  and  county  of  San  Francisco,  without  the  plaintiff's  consent, 
and  wrongfully,  came  into  the  possession  of  said  personal  prop- 
erty, and  still  retains  possession  of  the  same,  and  he  claims  to  he 
the  owner  of  the  same. 

That  before  the  commencement  of  this  action,  to  wit :  on  the 
fourth  day  of  June,  Jpoo,  at  the  place  last  aforesaid,  tlie  plaintiff 


526  New  Book  of  Forms. 

demanded  of  the  defendant  the  possession  of  said  personal  prop- 
erty, but  to  deliver  the  possession  thereof  the  defendant  refused, 
and  still  refuses. 

That  the  defendant  still  unlawfully  withholds  and  detains  said 
property  from  the  possession  of  the  plaintiff,  to  his  damage  in 
the  sum  of  one  thousand  dollars. 

That  the  same  has  not  been  taken  for  a  tax,  assessment,  or 
fine,  pursuant  to  a  statute,  or  seized  under  an  execution  or  an 
attachment  against  the  property  of  the  plaintiff  [or  if  it  has  been 
so  seized  or  attached,  allege  the  fact  and  aver  that  the  said  prop- 
erty is  by  lazv  exempt  from  execution]. 

Wherefore,  the  plaintiff  demands  judgment  against  the  defend- 
ant for  the  recovery  of  the  possession  of  said  personal  property, 
or  for  the  sum  of  one  thousand  dollars,  the  value  thereof,  in  case 
a  delivery  cannot  be  had,  together  with  five  hundred  dollars  dam- 
ages, and  for  costs  of  suit. 

No    893. — Complaint — Collision,    Injuries   by 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  fourth  day  of  August,  ipo6,  the  defendant  was 
a  corporation  duly  incorporated  under  the  laws  of  this  state,  and 
was  the  owner  of  a  certain  railroad,  known  as  the  Stockton  and 
Fresno  Railroad,  together  with  the  track,  rolling  stock,  and  other 
appurtenances  thereto  belonging;  and  was  a  common  carrier  of 
passengers  thereupon  for  hire,  between  Stockton  and  Fresno,  in 
the  state  of  California. 

2.  That  on  that  day  the  defendant,  in  consideration  of  the 
sum  of  $2^,  then  paid  to  it  by  the  plaintiff  therefor,  undertook 
and  agreed,  as  such  common  carrier,  to  transport  and  convey  the 
plaintiff  from  Stockton  to  Fresno,  as  a  passenger,  and  the  plain- 
tiff thereupon  entered  one  of  the  cars  of  the  defendant  to  be  so 
conveyed  as  aforesaid  from  Stockton  to  Fresno,  aforesaid. 

3.  That  while  he  was  such  passenger,  at  L.  [or  near  the  sta- 
tion of  L.,  or  between  the  stations  of  L.  and  M.],  a  collision 
occurred  on  the  said  railroad  caused  by  the  negligence  of  the 
defendant  and  its  servants,  whereby  the  plaintiff  was  much  in- 
jured [state  the  injury  according  to  fact,  and  the  special  damage, 

*/  any].  .  .  . 

[Or,  3.  That  the  defendant  and  its  servants,  m  managing  satd 
cars  in  which  plaintiff  was  a  passenger,  were  so  careless  and 
negligent  that  it  was  unsafe  for  liim  to  remain  in  one  of  them; 
and  that  in  order  to  free  himself  from  the  danger,  lie  was  obliged 
to  leap  from  the  car,  and  in  doing  so  was  injured]  [state  injury 
according  to  the  fact.] 

4.  Bv  means  whereof  the  plaintiff  hath  been  damaged  in  the 
aim  of  $2,ppo. 


Complaint — Pleadings.  527 


No.  894. — Complaint — Common  Carriers,  vs. 

'[Title  of  Court  and  Cause.] 

The  plaintiff  complains,  and  alleges: 

1.  That  on  the  third  day  of  August,  igo6,  the  defendant  was 
a  common  carrier  of  passengers  for  hire  by  stagecoach  between 
U.  and  iV. 

2.  That  on  that  day,  as  such  carrier,  he  received  the  plaintiff 
upon  his  coach  to  be  carried  from  M.  to  N.,  for  the  sum  of  $^00, 
which  was  then  and  there  paid  by  the  plaintiff  to  the  defendant. 

3.  That  while  he  was  such  passenger  at  N.  [or  near  N.,  or 
between  M.  and  N.\,  the  said  coach  vvas,  by  and  through  the 
carelessness  annd  negligence  of  the  said  defendant,  overturned 
and  thrown  down,  with  the  plaintiff  therein,  as  aforesaid,  by 
me^ns  whereof  the  said  plaintiff  was  greatly  injured,  and  one  of 
the  legs  of  said  plaintiff  was  broken,  and  fractured,  and  bruised, 
and  the  said  plaintiff  was  otherwise  greatly  injured,  wounded, 
and  cut,  insomuch  that  the  said  plaintiff  then  became  sick,  lame, 
and  sore,  and  so  continued  for  the  space  of  /zt'o  months  thence 
next  ensuing,  and  was  during  all  that  time  prevented  from  at- 
tending to  his  business  and  carrying  on  the  same,  and  the  said 
plaintiff  was  forced  to  expend,  and  did  expend  the  sum  of  $1,000 
for  medical  attendance — and  nursing,  to  his  damage,  $1,^00. 


No.   895. — Complaint — Compromise,   Upon. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  eleventh  day  of  September,  igo6,  an  action 
was  pending  in  the  said  superior  court,  brought  by  the  plaintiff 
to  recover  from  the  defendant  the  sum  of  $^00,  for  goods  sold  by 
plaintiff  to  the  defendant. 

2.  That  on  the  thirtieth  day  of  September,  igo6,  at  C,  in  con- 
sideration that  the  plaintiff"  would  discontinue  said  action,  and 
would  accept  $400  in  satisfaction  of  his  claim,  the  defendant 
promised  to  pay  the  plaintiff"  the  sum  of  $400. 

3.  That  the  defendant  accordingly  discontinued  said  action. 

4.  That  no  part  of  said  sura  has  been  paid. 


No.  896. — Complaint — Contract  to  Employ,  Breach  of. 

[Title  of  Court  and  Cause.] 

The  plaintiff  complains,  and  alleges : 

I.     That  on   the   tzventy-sixth  day  of  May,   ipo6.  at  P.,  the 
plaintiff   and   tlie   defendant   mutually   agreed   tliat   the   plaintiff 


528  New  Book  of  Forms. 

should  serve  the  defendant  as  an  accountant,  and  that  the  defend- 
ant should  employ  the  plaintiff  as  such  for  the  term  of  [one  year, 
or  as  the  case  may  be] .  and  pay  him  for  his  services  $63  monthly 
[or  as  the  case  may  be].  .    •« 

2.  That  on  the  tzventy -seventh  day  of  May,  IQ06,  the  plaintiff 
entered  upon  the  service'  of  the  defendant  under  said  agreement, 
and  has  ever  since  been,  and  still  is,  ready  and  willing  to  con- 
tinue in  such  service. 

3.  That  on  the  twenty-sez'enth  day  of  Aui^ust,  1906,  the  de- 
fendant wrongfully  discharged  the  plaintiff,  and  refused  to  permit 
him  to  serve  as  aforesaid,  though  the  plaintiff  then  and  there 
offered  to  continue  in  said  service,  and  perform  said  agreement 
on  his  part,  to  the  damage  of  the  plaintiff,  $1,550. 

No.   897. — Complaint — Contract   to   Manufacture,   Breach   of. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  thirtieth  day  of  May,  1906,  at  P.,  the  plain- 
tiff delivered  to  the  aefendant  iifty  sides  of  leather,  of  the  value 
of  $20,  to  be  manufactured  into  harness  for  a  reasonable  compen- 
sation, to  be  paid  to  the  defendant  by  the  plaintiff. 

2.  That  the  defendant,  in  consideration  thereof,  undertook  to 
manufacture  the  said  harness,  or  cause  it  to  be  manufactured 
from  the  leather,  and  to  deliver  the  same  to  the  plaintiff  when  so 
manufactured. 

3.  That  the  said  leather  was  so  manufactured  into  harness  by 
the  defendant  before  the  thirtieth  day  of  June,  ipo6,  on  which 
day  the  plaintiff  demanded  the  same  of  the  defendant,  and  then 
and  there  offered  to  pay  him  a  reasonable  compensation  for  man- 
ufacturing the  same. 

[Or,  3.  That  the  defendant  did  not  manufacture  satd  leather 
into  harness,  although  a  reasonable  time  tlierefor  elapsed  before 
this  action.] 

4.  That  the  defendant  then,  and  ever  since,  refused  and  neg- 
lected to  deliver  the  same,  and  has  converted  them  to  his  own  use. 

[Or,  4.  That  the  defendant  manufactured  said  leather  in  such 
a  negligent  and  unskillful  manner,  that  the  saui  harness  was  of 
no  value.] 

No.  898. — Complaint — Contract,  Breach  of,  to  Serve, 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges : 
I.   That  on  the  twenty-seventh  day  of  May,  1906,  at  P.,  the 


CoMPi.AiNT — Pleadings.  ^2<) 

plaintiff  and  defendant  mutually  agreed  that  the  plaintiff  should 
employ  the  defendant  at  a  montJily  compensation  of  $^^00,  and 
that  the  defendant  should  serve  the  plaintiff  as  bookkeeper  for 
the  term  of  oyie  year. 

2.  That  the  plaintiff  has  always  been  ready  and  willing  to 
perform  his  part  of  the  said  agreement,  and  on  the  twenty-ninth 
day  of  May,  jpo6,  offered  so  to  do. 

3.  That  the  defendant  refused  to  serve  the  plaintiff  as  afore- 
said, to  his  damage  $2^00. 


No.     899. — Complaint — Comractor,    on     Special      Contract — 
Claim  for  Extra  Work. 

[Title  of  Court  and  Cause.] 

The  plaintiff  complains,  and  alleges: 
First — For  the  first  cause  of  action  : 

1.  That  on  the  fifteenth  day  of  May,  ipo6,  at  P.,  the  defend- 
ant, under  his  hand  and  seal,  made  a  contract  in  writing  with 
the  plaintiff,  of  which  the  following  is  a  copy:   [Copy  contract]. 

2.  That  he  has  duly  performed  all  the  conditions  thereof  on 
his  part,  except  that,  at  the  request  of  the  defendant,  he  finished 
the  building  with  hard  finish  instead  of  cloth  and  paper,  for 
which  the  defendant  promised  to  pay  a  reasonable  sum  in  addi- 
tion to  the  price  named  in  the  contract.  That  by  the  consent  of 
the  defendant  the  time  for  completing  said  work  was  extended 
for  one  month  beyond  the  time  fixed  for  the  contract,  to  wit,  to 
the  fifteenth  day  of  July,  ipo6. 

3.  That  the  plaintiff'  on  his  part  duly  performed  all  the  condi- 
tions of  said  contract  as  modified. 

4.  That  the  sum  of  $j^o  is  a  reasonable  payment  to  be  made, 
in  addition  to  the  price  named  in  said  contract,  for  finishing  the 
building  with  hard  fiiiish  instead  of  cloth  and  paper. 

5.  That  on  the  fifteenth  day  of  August,  1906,  at  P.,  the  plain- 
tiff' demanded  of  the  defendant  payment  of  the  sum  of  $2,^00, 
the  amount  due  on  said  contract  as  modified. 

6.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 
Second — For  a  second  cause  of  action: 

1.  That  between  the  fifteenth  day  of  May,  igo6,  and  the 
fifteenth  day  of  July,  igo6,  at  P.,  the  plaintitf  rendered  further 
services  and  furnished  materials  to  the  defendant,  at  his  request, 
in  [here  state  extra  work  and  material],  for  which  the  defend- 
ant promised  to  pay. 

2.  That  the  same  are  reasonably  worth  $480. 

3.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

New  Forms — 34 


230  New  Book  of  Forms. 


No.  900. — Complaint — Contractor  vs. — Street  Insecure. 

[Title  of  Court  and  Cause.] 

The  plaintiff  complains,  and  alleges: 

1.  That  at  the  time  hereinafter  mentioned,  the  defendant  had 
contracted  with  one  A.  B.  to  lay  down  pipes  in  and  under  the 
highway  known  as  C.  street,  in  P.,  for  the  purpose  of  supplying 
the  said  A.  B.  with  gas,  and  to  make  the  proper  trenches  for  the 
purpose,  and  when  such  pipes  were  laid  down  to  fill  up  properly 
the  said  trenches,  and  to  put  and  leave  the  said  highway  clear 
and  in  a  reasonably  secure  condition. 

2.  That  the  defendant  and  his  servants,  on  the  twenty-fifth  day 
of  January,  ipo6,  took  up  part  of  the  said  highway,  and  made 
trenches  and  holes  therein,  and  laid  down  said  pipes,  and  dis- 
placed the  earth  and  material  of  said  highway,  and  carelessly  and 
negligently  left  the  said  highway  in  a  dangerous  and  improper 
state,  in  consequence  whereof  a  horse  of  the  plaintiff,  of  the  value 
of  $1,500,  which  he  was  then  and  there  lawfully  driving  along 
the  said  highway,  fell  into  and  sunk  therein,  and  was  wounded, 
and  lamed,  and  rendered  of  no  value,  to  plaintiff's  damage  $1,300. 


No.  901. — Complaint — Conversion — Personal  Property. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  seventeenth  day  of  January,  igo6,  the  plaintiff 
was  lawfully  possessed  of  [briefly  describe  the  goods],  his  prop- 
erty, the  value  of  $800. 

2.  That  on  the  said  day,  at  P.,  the  defendant  unlawfully  took 
and  carried  away  said  goods  and  converted  and  disposed  of  the 
same  to  his  own  use,  to  the  damage  of  the  plaintiff  $800. 


No.  902. — Complaint — Condemnation  of  Land  by  Corporation. 

[Title  of  Court  and  Cause.] 

Now  comes  the  above-named  plaintiff,  and  complaining  of  the 
above-named  defendants,  alleges: 

I. 

That  plaintiff  is  a  railroad  corporation,  duly  incorporated,  or- 
ganized and  existing  under  the  laws  of  the  state  of  California, 
and  that  the  name  of  plaintiff  is  "S.  P.  R.  Company." 


Complaint — Pleadings.  531 

II. 

Thnt  snifl  plaintifT  is  incorporarted  for  the  purpose,  amon^ 
other  thiuj^s,  of  constructing-,  owning,  maintaining-  and  operating 
a  single  or  double  track  steam  railroad  of  a  standard  ,s^aiige,  znz., 
of  4  feet  8V2  inches,  commencing  at  the  city  and  county  of  San 
Francisco,  state  of  California,  and  running  thence  in  a  general 
southerly  direction  by  the  most  practicable  route  to  San  Bruno, 
in  the  county  of  San  Mateo,  in  said  state;  that  said  railroad  has 
been  definitely  located  by  plaintiff  over  and  through  the  parcel 
of  land  hereinafter  described,  and  that  said  land  is  necessary 
for  the  right  of  way  of  said  railroad. 

That  the  location  and  general  route  of  said  railroad  are  from 
a  point  in  the  city  and  county  of  San  Francisco,  in  the  state  of 
California,  through  said  city  and  county  in  a  general  soutlierly 
direction,  along  or  near  the  shore  of  the  bay  of  San  Francisco, 
to  the  boundary  line  of  the  county  of  San  Mateo,  state  of  Cali- 
fornia, and  thence  to  the  station  or  village  of  San  Bruno,  in  said 
county  of  San  Mateo,  and  the  termini  of  said  railroad  are  re- 
spectively the  said  city  and  county  of  San  Francisco,  and  said 
station  or  village  of  San  Bruno,  and  that  a  map  thereof  so  far  as 
the  same  is  involved  in  this  proceeding,  is  hereunto  annexed, 
and  marked  "Exhibit  A." 

IIT. 
That  the  defendant.  U.  T.  Company  of  San  Francisco,  is  and 
at  all  of  the  times  herein  mentioned  was,  a  corporation,  incor- 
porated, organized  and  existing  under  the  laws  of  the  state  of 
California. 

IV. 
That  upon  the  5//;  day  of  August,  i8gg,  W.  A.  P.  died  testate 
at  the  city  and  county  of  San  Francisco,  state  of  California;  that 
at  the  time  of  his  death  he  was  a  resident  of  said  city  and  county, 
and  left  estate  therein,  including  an  undivided  half  interest  in  the 
premises  hereinbefore  described ;  that  in  and  by  the  last  will  and 
testament  of  said  deceased  the  defendants,  U.  T.  Company  of 
San  Francisco,  and  W.  G.  were  named  as  executors  thereof;  that 
in  a  proceeding  duly  commenced  in  the  superior  court  of  the 
city  and  county  of  San  Francisco,  state  of  California,  for  the  ad- 
ministration of  the  estate  of  said  W.  A.  P.,  deceased,  said  last 
will  and  testament  was  filed  for  probate;  that  by  an  order  of 
said  court  duly  made  and  entered  in  said  proceeding  on  the  21st 
day  of  August,  1809.  letters  testamentary  were  issued  to  said  de- 
fendants U.  T.  Company  of  San  Francisco  and  W.  G.,  as  execu- 
tors aforesaid ;  that  said  executors  thereupon  qualified  as  such, 
<rntered  upon  the  discharge  of  their  duties,  and  ever  since  have 
been  and  now  are  acting  as  such  executors. 


532  New  Book  of  Forms. 

V. 

That  the  followino^  is  a  description  of  the  land  so  as  aforesaid 
required  for  the  right  of  way  of  said  railroad  of  plaintiff,  viz.: 

That  certain  parcel  of  land  situated  in  the  city  and  county  of 
San  Francisco  and  state  of  California  and  described  as  follows, 
to  wit:   [Description.] 

That  said  land  is  sought  to  be  taken  in  this  proceeding,  and 
that  the  same  does  not  include  the  whole,  but  is  only  a  part  of  an 
entire  tract. 

VI. 
That  defendants  claim  to  own  the  tract  of  land  hereinbefore 
particularly  described  and  also  the  larger  tracts  of  which  it  is  a 
part,  and    are  all    the  owners  and    claimants,  thereof    known  to 
plaintiff. 

VII. 
That  the  true  names  of  the  defendants,  /.  D.,  R.  R.,  J.  B.  and 
P.  S.,  are  unknown  to  plaintiff,  and  they  are  therefore  herein 
designated  by  fictitious  names,  and  plaintiff  prays  that  when  their 
true  names  are  discovered  they  may  be  herein  inserted  by  appro- 
priate amendments  to  this  complaint. 

VIII. 

That  none  of  the  property  hereinbefore  described  has  heretc- 
f(3re  been  appropriated  to  any  public  use,  and  that  the  said  rail- 
road of  plaintiff  has  been  located  in  the  manner  which  will  be 
most  compatible  with  the  greatest  public  good  and  the  least  pri- 
vate injury. 

Wherefore  plaintiff  prays  that  the  court  will  ascertain  and 
assess: 

1.  The  value  of  the  property  sought  to  be  condemned,  and  all 
improvements  thereon  pertaining  to  the  realty,  and  of  each  and 
every  separate  estate  or  interest  therein. 

2.  The  damages  which  will  accrue  to  the  portion  not  sought 
to  be  condemned  of  the  larger  parcel  of  land  of  which  the  land 
hereinbefore  particularly  described  forms  a  part,  by  reason  of  its 
severance  from  the  portion  sought  to  be  condemned,  and  the  con- 
struction of  the  improvement  in  the  manner  proposed  by  the 
plaintiff. 

3.  How  much  the  portion  not  sought  to  be  condemned,  and 
each  estate  or  interest  therein  will  be  benefited,  if  at  all,  by  the 
construction  of  the  improvement  proposed  by  the  plaintiff,  and 
if  the  benefit  shall  be  equal  to  the  damages  assessed  under  the 
last  preceding  paragraph  of  this  prayer,  that  the  owner  of  said 
parcel  shall  be  allowed  no  compensation  except  the  value  of  the 
portion  taken,  but  if  the  benefit  shall  be  less  than  the  damages  so 


Complaint— Pi.itADiNCS.  533 

assessed,  the  former  may  be  deducted   from  the  latter,  and  the 
remainder  be  the  only  damages  allowed  in  addition  to  the  value. 

4.  The  cost  of  good  and  sufficient  fences  along  the  line  of  the 
railroad  of  plaintitY,  and  the  cost  of  cattle-guards  where  fences 
may  cross  the  line  of  said  railroad. 

5.  That  plaintiff  have  judgment  against  defendants  condemn- 
ing the  premises,  hereinbefore  particularly  described,  to  public 
use  for  the  purposes  hereinbefore  set  forth,  as  provided  by  law, 
and,  thereafter,  upon  compliance  with  the  requirements  of  said 
judgment,  and  the  provisions  of  Title  VII  of  Part  III  of  the 
Code  of  Civil  Procedure  in  that  behalf  contained,  a  final  order  of 
condemnation  of  said  premises  be  made  and  entered  herein,  and 
for  such  other  and  further  relief  as  may  be  meet  in  the  premises. 

Verified. 

NOTE,— California,  C.  a  P.,  sec.  1243. 


No.  903, — Complaint — Copartnership  on  Draft  Accepted  and 

Paid. 

[Title  of  Court  and  Cause.] 
The  plaintiffs  complain  and  allege: 

1.  That  on  the  fiftce)ith  day  of  March,  IQ06,  the  defendants, 
then  composing  the  firm  of  C.  D.  &  Company,  drew  their  certain 
bill  of  exchange,  in  said  copartnership  name,  at  M.,  and  directed 
the  same  to  the  plaintiffs  at  M.,  who  then  were  and  now  are  co- 
partners, doing  business  under  the  firm  name  of  A.  B.  &  Com- 
pany, by  which  bill  of  exchange  the  said  defendants  requested 
the  plaintiffs  to  pay  to  the  order  of  said  defendant,  four  months 
after  date,  the  sum  of  $1,2^0,  for  value  received. 

2.  That  said  bill  of  exchange  the  plaintiffs  afterward  ac- 
cepted and  paid  in  full. 

3.  That  no  funds  were  provided  by  said  defendants,  either  be- 
fore or  after  the  same  was  drawn  as  aforesaid,  for  the  payment 
thereof,  and  the  plaintiffs  have  had  no  funds  of  said  defendants 
at  any  time  in  their  hands  to  pay  the  same. 


No.  904. — Complaint — By  Corporation. 

[Title  of  Court  and  Cause.] 

The  plaintiff  complains  and  alleges: 

I.  That  it  is  a  corporation  organized  and  existing  under  the 
laws  of  the  state  of  Nevada,  and  is  doing  business  as  sucli  in  its 
said  corporate  name. 


534  New  Book  of  Forms. 


No.  905. — Complaint — Corporation  vs. — Assault  and  Ejection. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains  and  allei^es: 

1.  That  at  the  time  hereinafter  mentioned,  the  defendant 
was,  and  now  is,  a  corporation,  duly  organized  under  and  pur- 
suant to  the  laws  of  this  state,  and  was  the  owner  of  a  certain 
railroad  known  as  the  C.  P.  R.,  with  the  track,  cars,  and  other 
appurtenances  thereunto  belonging,  and  was  a  common  carrier 
of  passengers  from  P.  to  R. 

2.  That  on  the  eleventh  day  of  July,  1006,  at  P..  the  defend- 
ant, with  unnecessary  violence,  assaulted  the  plaintiff,  and  forcibly 
ejected  him  from  one  of  its  cars. 

3.  That  the  plaintiff  was  thereby  disabled  from  attending  to 
his  business  for  three  weeks  thereafter,  and  has  ever  since  been 
disabled  from  using  his  left  foot,  or  othcrzvise,  and  was  compelled 
to  pay  $1,000  for  medical  attendance,  to  the  damage  of  the  plain- 
tiff $2,750. 

No.  906. — Complaint — Corporation  Assessment. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains  and  alleges: 

1.  That  in  pursuance  of  an  act  of  the  legislature  of  the  state 
of  California,  entitled  [give  the  title  of  the  act],  passed  October 
g,  ipo6,  and  the  acts  amendatory  thereof  and  supplementary  there- 
to, the  above-named  company  was  organized  and  formed  into  a 
corporation  under  the  name  of  tlie  A.  L.  Company,  and  ever  since 
Hs  said  organization  has  had  its  principal  office  and  place  of 
business  at  the  city  of  B. 

2.  That  on  the  fourth  day  of  November,  igo6,  at  B.,  defend- 
ant and  certain  other  persons  being  desirous  of  associating  them- 
selves together  for  the  purpose  of  constructing  a  toll  road  [or 
state  the  actual  purpose]  from  the  village  of  R.  to  the  village  of 
S.,  in  said  county,  in  consideration  thereof  and  of  the  mutual 
promises  each  to  the  other,  and  of  the  benefits  to  be  derived  from 
b^ing  members  of  said  association,  made  and  subscribed  a  cer- 
tain agreement  in  writing,  as  follows,  to  wit: 

[Copy  subscription  paper,  zvith  subscribers'  names,  and  add'-] 
and  other  persons  whose  names  are  here  omitted. 

3.  That  the  said  defendant  did,  at  the  time  of  subscribing 
said  agreement,  set  opposite  to  his  name  thereto  subscribed  the 
number  of  five  shares,  and  that  the  par  value  of  each  share  is  $50^ 
and  tliat  said  defendant  agreed  to  take  and  pay  for  the  same. 


Complaint — Pi.kadings.  535 

4.  That  afterward,  to  wit:  on  the  fifth  day  of  December,  igo6, 
at  a  rej^ular  meeting  of  the  trustees  of  said  company,  an  assess- 
ment of  five  per  cent  of  the  par  value  of  each  share  of  the  cap- 
ital stock  of  said  corporation  was  duly  levied ;  that  at  the  time 
of  the  lev}-  of  such  assessment,  defendant  was  a  subscriber  to  the 
capital  stock  of  said  corporation  in  the  amount  of  7,000  shares, 
of  the  par  value  of  $f,o,  and  was  the  owner  of  such  stock. 

5.  That  afterward,  etc.  [Allege  the  number  of  assessments 
defendant  has  failed  to  pay,  each  as  above.] 

6.  That  the  defendant  had  due  notice  of  each  of  the  said  as- 
sessments, made  by  the  trustees  of  said  company,  as  aforesaid, 
and  that  the  same  were  duly  published  in  the  D.  R.,  a  newspaper 
printed  and  published  in  the  city  of  B.,  for  at  least  ten  days,  and 
in  every  respect  according  to  law. 

7.  That  the  whole  sum  of  $2jo  is  now  due  plaintiff  from  de- 
fendant tliereon,  and  no  part  tliereof  has  been  paid. 


No.   907. — Complaint — Corporation,   Directors   vs, 
[Title  of  Court  and  Cause.] 
The  plaintiti'  complains  and  alleges: 

1.  That  before  the  time  hereinafter  mentioned,  at  P.,  a  cor- 
poration was  formed  or  pretended  to  be  formed  for  the  purpose 
of  insuring  property  against  losses  by  fire,  and  for  other  pur- 
poses; which  corporation  was  named  the  M.  N.  I.  Company. 

2.  That  the  said  company  was  organized,  or  pretended  to  be 
organized,  under  the  provisions  of  a  law  of  this  state,  passed 
[date  of  act],  entitled  "An  Act,"  etc. 

3.  That  the  charter  of  said  company  provided,  among  other 
things,  that  the  capital  thereof  should  be  $50,000,  to  be  paid  up 
in  cash. 

4.  That  at  the  times  hereinafter  mentioned,  the  defendants 
were  [or  represented  themselevs  to  be]  directors  of  said  company. 

5.  That  at  sundry  times  between  the  twenty-fourth  day  of 
March,  igo6,  and  the  iifth  day  of  August,  IQ06,  the  defendants 
represented  to  the  public  at  large  [or  to  the  plaintiff]  that  the 
said  company  had  a  paid-up  cash  capital  of  $§0,000. 

6.  That  on  the  tenth  day  of  August,  1906,  at  P.,  the  defend- 
ants published  a  statement,  showing  that  the  profits  of  the  said 
company  amounted  to  $2,500,  and  declared  a  dividend  of  Hve  per 
centum. 

7.  That  the  said  representations  were  wholly  false,  and  were 
then  known  by  the  defendants  to  be  so,  and  were  made  with 
intent  to  deceive  and  defraud  the  public,  and  to  induce  persons 
to  insure  with  the  said  company.     That  the  said  company  never 


536  New  Book  of  Forms. 

had  a  cash  capital  of  more  than  $2^,000,  and  had  not  on  the  said 
tenth  day  of  August,  igo6,  more  than  $'/50  profits. 

8.  That  by  the  said  representations  the  plaintiff  was  induced 
to  insure  with  the  said  comoany,  which  accordingly  issued  to  him 
a  policv  of  insurance,  of  wliich  a  copy  is  hereto  annexed,  marked 
"Exhibit  A." 

9.  That  on  the  -fifteenth  day  of  August,  igo6,  the  property 
mentioned  in  the  said  policy  was  destroyed  or  greatly  injured  by 
fire,  and  the  plaintiff's  loss  thereon  amounted  to  $2,^^o. 

10.  That  on  the  seventeenth  day  of  September,  ipo6,  at  P., 
the  plaintiff  obtained  judgment  against  said  company  upon  the 
sni  1  policy  for  $i,joo,  in  the  superior  court  of  the  county  of 
Almrieda. 

[State  damages.] 


No.     gcS. — Complaint — Cornoration,     Municipal,     vs. — Street 

Insecure. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains  and  alleges : 

1.  That  the  defendant  is  a  municipal  corporation,  duly  organ- 
ized tmder  the  laws  of  this  state. 

2.  That  among  other  things,  it  is,  by  its  charter,  made  its 
duty  to  keep  the  streets  in  said  city  in  good  order,  and  at  all 
times  properly  to  protect  any  excavations  made  in  said  streets, 
by  placing  lights  and  signals  thereat  to  indicate  danger. 

3.  That  a  certain  street  in  said  city,  known  as  C  street,  was, 
and  is  a  common  thoroughfare,  and  used  by  the  citizens  thereof 
?-nd  others,  and  that  the  duty  of  said  defendant  as  to  said  street 
was,  and  became  at  the  time  hereinafter  mentioned,  a  matter  of 
public  and  general  concern. 

4.  That  on  or  about  the  fourth  day  of  August,  ipo6,  a  deep 
and  dangerous  excavation  [hole  or  trench]  was  dug  in  said  street 
[or  an  obstruction  was  placed  in  said  street,  and  negligently  left 
therein],  and  suffered  by  the  defendant,  during  a  night  on  or 
about  said  day,  to  remain  open,  exposed,  and  without  proper 
protection,  and  without  any  light  or  signal  to  indicate  danger. 

5.  That  the  plaintiff,  on  the  night  aforesaid,  was  lawfully 
traveling  on  said  street,  and  was  wholly  unaware  of  danger,  and 
was  accidentally,  and  without  fault  or  negligence  on  his  part, 
precipitated  into  said  excavation  [hole  or  trench],  whereby  he 
received  great  bodily  injury,  and  was  made  sick  and  sore,  and 
was  thereby  kept  to  his  bed,  and  detained  from  business  for 
twenty  days,  and  was  in  consequence  thereof  compelled  to  expend 
$750  for  medical  attendance  and  nursing,  and  has  been  made 
permanently  lame,  to  l.is  damage  $2,y§o. 


Complaint — Pleadings.  537 


No.    909. — Complaint — Corporation    under    Special    Law. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  allesres : 

1.  That  the  defendant  is  a  corporation  created  by  and  under 
the  laws  of  this  state,  organized  pursuant  to  an  act  of  the  lejjis- 
lature,  entitled  [title  of  act  in  full],  passed  January  to,  IQ06,  and 
the  acts  amendator\'  thereof  and  supplementary  thereto. 

2.  [State  a  cause  of  action.] 


No.   910. — Complaint — Corporation — Subscription. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  [Aver  incorporation.] 

2.  That  in  contemplation  of  the  incorporation  of  these  plain- 
tiffs, and  for  the  purpose  of  constructing,  owning,  and  maintain- 
ing the  toll  road,  then  contemplated,  the  defendant,  with  others, 
on  the  tenth  day  of  January,  ipo6,  zt  A.,  became  a  subscriber  to 
the  stock  of  the  said  company  by  severally  signing  and  delivering 
an  agreement  in  writing,  of  which  the  following  is  a  copy:  [Copy 
subscription  paper.] 

3.  That,  among  other  persons,  the  defendant  signed  and  exe- 
cuted said  agreement,  and  set  opposite  to  his  name  the  sum  of 
$100,  which  he  thereby  agreed  to  pay  to  said  company. 

4.  That  after  the  defendant  had  thus  subscribed,  and  on  or 
about  the  sixth  day  of  February,  igo6,  he  subscribed  to  the  arti- 
cles of  association  of  said  company,  his  name  and  his  place  of 
residence,  to  wit:  A.  B.  of  C.  F.,  and  the  number  of  shares  of 
stock  taken  by  him,  to  wit :  two  shares,  amounting  to  $100,  the 
shares  of  stock  being  $§0  each. 

5.  That  the  plaintiff,  by  its  directors,  on  the  fourth  dav  of 
March,  IQ06.  at  L.  K.,  tendered  to  defendant  the  shares  of  stock 
so  subscribed  for  by  him,  and  demanded  the  defendant  to  pav 
thereon  the  sum  of  $100,  agreeably  to  said  subscription  and  the 
charter  and  by-laws  of  the  company. 

6.  That  the  plaintiff  has  performed  all  the  conditions  thereof 
on  its  part. 

7.  That  the  defendant  has  not  paid  the  said  subscription,  or 
any  part  tliereof. 


538  New  Book  of  Forms. 


No.  91 1. — Complaint — County,  vs.  a. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  [Allege   defendant's   corporate   existence.] 

2.  That  the  plaintiff  performed  services  for  the  said  defend- 
ant in  guarding  the  jail  of  said  county,  from  the  second  day  of 
January,  ipo6,  to  and  including  the  sez'enth  day  of  July,  1906. 

3.  That  the  sheriff,  with  the  assent,  in  writing,  of  the  superior 
judge  of  said  county,  employed  plaintiff  to  perform  said  service 
as  a  temporary  guard  for  the  protection  of  the  county  jail,  and 
for  the  safekeeping  of  prisoners,  and  that  said  employment  was 
necessary. 

4.  That  said  sheriff,  at  the  time  of  employing  said  plaintiff, 
promised  plaintiff  that  the  defendant  would  pay  plaintiff  for  said 
services  what  they  were  reasonably  worth,  and  that  said  services 
were  reasonably  worth  the  sum  of  $200. 

5.  [Allege  presentation,  rejection,  and  nonpayment  of  claim 
as  in  preceding  form.] 

6.  [//  there  are  other  claims  for  similar  sennces,  performed 
at  different  dates,  allege  them  as  separate  causes  of  action.] 


No.  912. — Complaint — Covenant,  Breach  oL 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  eighteenth  day  of  May,  1906,  at  P.,  the  de- 
fendant, by  his  deed  of  that  date,  duly  executed,  in  consideration 
of  $500,  sold  and  conveyed  in  fee  simple,  to  the  plaintiff,  certain 
land:  [Describe  it.] 

2.  That  the  defendant,  by  the  same  deed,  covenanted  as  fol- 
lows: [Copy  the  covenant.] 

3.  That  the  defendant  had  not,  at  the  time  of  the  execution 
of  said  deed,  a  good  and  sufficient  title  to  said  premises,  and  by 
reason  thereof,  on  the  tu>enty--fifth  day  of  May,  1906,  at  P.,  the 
plaintiff  was  ousted  and  dispossessed  of  the  said  premises  by  due 
course  of  law. 

[Or,  3.  That  one  G.  H.,  at  the  time  of  the  execution  of  the 
said  deed,  and  from  thence,  had  lawful  right  and  paramount  title 
to  the  said  premises,  and,  by  virtue  thereof,  after  the  execution 
of  said  deed,  on  the  tzventy-fifth  day  of  May,  1906,  entered  upon 
the  possession  thereof,  and  ousted  and  dispossessed  by  due  pro-. 


Complaint — Pleadixgs,  539 

cess  of  lazv,  and  kept,  and  still  keeps,  the  plaintiff  from  the  pos- 
session of  the  same.  That  the  plaintiff  has  also  been  compelled 
to  pay  the  costs  and  charges  sustained  by  the  said  G.  H.,  in 
prosecntincr  a  certain  action  in  the  superior  court,  in  Sonoma 
county,  for  the  recovery  of  said  premises,  which  amounted  to 
$^00,  and  to  pay  out  the  additional  sum  of  $300  in  endeavoring 
to  defend  such  action.] 


No.  913. — Complaint — Covenant,   Encumbrances,  vs. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  twenty-second  day  of  May,  ipo6,  at  P.,  the  de- 
fendant, in  consideration  of  $2,000,  to  him  paid,  granted  to  the 
plaintiff,  by  deed,  in  fee  simple,  a  lot  in  the  town  of  P.,  county  of 
Napa  [or  otherzvise  briefly  designate  the  property]. 

2.  That  the  said  deed  contained  a  covenant  on  the  part  of  the 
defendant,  of  which  the  following  is  a  copy:   [Copy  of  covenant.] 

3.  That  at  the  time  of  the  making  and  delivery  of  said  deed 
the  premises  were  not  free  from  all  encumbrances,  but,  on  the 
contrary,  the  defendant  before  that  time,  on  the  twcnty-iifth  day 
of  January,  igo6,  at  P.,  by  deed,  in  the  nature  of  a  mortgage,  duly 
executed,  had  mortgaged  the  said  premises  to  one  R.  S.,  to  secure 
the  payment  of  $900,  with  interest. 

4.  And,  for  a  further  breach,  the  plaintiff  alleges  that  on  the 
fifteenth  day  of  February,  IQ06,  in  the  superior  court  of  Xapa 
county,  in  this  state,  judgment  was  rendered  against  the  defend- 
ant for  the  sum  of  $400,  in  an  action  in  which  the  said  encum- 
brancer was  plaintiff,  and  the  defendant  herein  was  defendant, 
which  judgment  was,  on  the  nineteenth  day  of  February,  ipo6. 
docketed  in  said  county  of  [where  premises  are  situated],  and 
which  judgment,  at  the  time  of  the  execution  and  delivery  of  the 
deed  in  the  nature  of  a  mortgage,  remained  unpaid  and  unsatis- 
fied of  record. 

5.  And,  for  a  further  breach,  the  plaintiff  alleges  that  at  the 
time  of  the  execution  and  delivery  of  said  deed  the  premises  were 
subject  to  a  tax  theretofore  duly  assessed,  charged,  and  levied 
upon  the  said  premises  by  the  said  city  of  P.,  and  the  officers 
thereof,  of  the  sum  of  $^0,  and  which  tax  was  then  remaining 
due  and  unpaid,  and  was  at  the  time  of  the  deliver\'  of  said  deed 
a  lien  and  encumbrance  by  law  upon  the  said  premises. 

6.  That  by  reason  thereof  the  plaintiff  paid  on  the  third  day 
of  June,  igo6,  the  sum  of  $133,  in  extinguishing  the  [here  state 
what,  whether  the  judgment,  lien,  tax,  or  other  encumbrances,  or 
all  of  them],  aforesaid,  to  his  damage  $1,330. 


540  New  Book  of  Forms. 

No.  914. — Complaint — Covenant. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges : 

1.  That  on  the  Hventy-Hfth  day  of  May,  IQ06,  at  P.,  the  de- 
fendant, by  deed  [or  lease  under  seal]  let  to  the  plaintiff,  and  the 
plaintiff  rented  from  the  defendant,  the  house  numbered  61  R. 
street,  in  P.,  for  the  term  of  three  years,  covenanting  that  the 
plaintiff  should  quietly  enjoy  possession  thereof  for  the  said  term. 

2.  That  on,  etc.,  one  A.  B.,  who  was  the  lawful  owner  of  the 
said  house,  lawfully  evicted  the  plaintiff  therefrom,  and  still  with- 
holds the  possession  thereof  from  him. 

3.  That  the  plaintiff  was  thereby  prevented  from  continuing 
the  business  of  merchandising  at  the  said  place,  and  was  compelled 
to  expend  $1,000  in  moving,  and  lost  the  custom  of  C.  D.,  B.  P., 
and  G.  H.,  and  divers  other  persons,  by  such  removal. 

No.  915. — Complaint — Credit,  Fraudulently  Procuring, 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  twenty-second  day  of  March,  igo6,  at  P.,  the 
defendant  represented  to  the  plaintiff  that  one  C.  D.  was  solvent 
and  in  good  credit,  and  worth  $2,'j^o  over  all  his  liabilities. 

2.  That  the  plaintiff  was  thereby  induced  to  sell  to  the  said 
C.  D.  [state  articles  sold]  of  the  value  of  $2,2^0,  on  three  months' 
credit. 

3.  That  the  said  representations  were  false  in  this,  that  the 
said  C.  D.  was  not  then  and  there  solvent  and  in  good  credit,  and 
worth  $2,y§o  over  all  his  liabilities ;  but,  on  the  contrary  thereof, 
the  said  C.  D.  was  then  and  there  insolvent  and  not  in  good  credit, 
all  of  which  was  well  known  to  the  defendant,  and  said  represen- 
tations were  made  by  him  with  intent  to  deceive  and  defraud  the 
plaintiff  [or  to  deceive  and  injure  the  plaintiff]. 

4.  That  the  said  C.  D.  did  not  pay  for  the  said  goods  at  the 
expiration  of  the  credit  aforesaid  [or  has  not  paid  for  the  said 
goods,  and  the  plaintiff  has  wholly  lost  the  same  by  reason  of  the 
premises]. 

No.  916. — Complaint — Creditor  vs.  Stockholder. 

[Title  of  Court  and  Cause.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  times  hereinafter  mentioned,  the  B.  C.  Com- 
pany was  a  corporation  created  by  and  under  the  laws  of  this 


Complaint — Pleadings.  541 

state,  orq^anized  pursuant  to  an  act  entitled  [title  of  act]  passed 
December  ly,  igo6,  and  the  acts  amending  the  same,  and  supple- 
mentary thereto. 

2.  That  on  the  fourth  day  of  April,  igo6,  said  company,  by 
its  agent  duly  authorized  thereto,  made  its  promissory  note,  dated 
on  that  day,  a  copy  of  which  is  hereto  annexed,  and  marked  "Ex- 
hibit  A." 

3.  That  on  the  sixteenth  day  of  December,  1906,  in  an  action 
in  the  court  of  A.  L.  D.,  Esq.,  justice  of  the  peace  of  C.  W.  town- 
ship, county  of  Yuba,  to  recover  the  same  from  said  company, 
judgment  was  rendered  by  said  court  against  said  company  in 
favor  of  the  plaintiff  for  $22^,  being  $;2oo,  the  amount  due  there- 
on, with  interest  amounting  to  $2fi  and  costs. 

4.  That  execution  thereon  was  thereafter  issued  against  said 
company,  and  returned  wholly  unsatisfied. 

5.  That  at  the  time  said  debt  was  contracted,  the  defendant 
was  a  stockholder  of  said  company,  holding  stock  therein  to  the 
amount  of  $1,000,  being  10  shares  of  the  par  value  of  $100  each ; 
and  that  he  is  still  such  stockholder  therein. 

["Exhibit  A"  annexed.] 


No.  917. — Complaint — Delivering,  for  not. 

[Title  of  Court  and  Cause.] 

The  plaintiff  complains,  and  alleges : 

1.  That  on  the  eleventh  day  of  June,  1906,  at  P.,  the  plaintiff 
agreed  with  the  defendant  to  buy  of  him,  and  the  defendant  then 
agreed  to  sell  to  the  plaintiff,  and  to  deliver  to  him  on  the  tzventv- 
first  day  of  Jtine,  igo6,  at  P.,  fifty  thousand  bushels  of  oats,  at 
the  price  of  50  cents  per  bushel,  to  be  paid  for  on  delivery  thereof. 

2.  That  the  said  time  for  the  delivery  of  the  said  oats  has 
elapsed,  and  that  plaintiff  has  always  been  ready  and  willing  to 
receive  the  said  oats,  and  to  pay  for  them  at  the  price  aforesaid, 
on  delivery,  according  to  the  terms  of  said  agreement,  of  all 
of  which  the  defendant  had  notice. 

3.  Tliat  the  defendant  has  not  delivered  the  same,  nor  any 
part  thereof,  to  the  plaintiff,  at  P.,  or  elsewhere. 

4.  That  the  plaintiff  has  thereby  lost  profits,  and  has  sustained 
damage  to  the  amount  of  $12,250. 


No.  918. — Complaint — Devisee,  by. 
[Title  of  Court  and  Cause.] 

The  plaintiff,  as  devisee  of  A.  B.,  deceased,  complains,  and  al- 
leges : 

I.    [State  cause  of  action  accrued  to  deceased.] 


542  New  Book  of  Forms. 

2.  That  the  said  A.  B.  was  seised  of  the  estate  hereinbefore 
mentioned,  and  that  he  died  on  the  second  day  of  July,  ipo6,  at 
S.,  and  by  his  last  will  devised  the  same  to  this  plaintiff. 


No.  919. — Complaint — Ejectment. 

[Title  of  Court  and  Cause.] 

The  plaintiff  above  named,  complaining  of  defendant  above 
named,  for  cause  of  action,  alleges: 

That  on  the  fourth  day  of  March,  1906,  the  said  plaintiff  was 
the  owner  and  seised  in  fee,  and  entitled  to  the  possession  of  all 
that  certain  lot  of  land  situate  in  the  city  and  county  of  San 
Francisco,  state  of  California,  and  described  as  follows,  to  wit: 
[Description.] 

That  while  the  plaintiff  was  such  owner,  and  so  seised  and 
possessed,  and  entitled  to  the  possession  of  said  land  and  prem- 
ises, the  said  defendant  did,  on  the  day  and  year  aforesaid,  wrong- 
fully and  unlawfully  enter  into  and  upon  the  same,  and  oust  and 
eject  the  plaintiff  therefrom,  and  ever  since  that  day,  wrongfully 
and  unlawfully  withheld,  and  still  and  now  wrongfully  and  un- 
lawfully does  withhold,  the  possession  thereof  from  the  plaintiff, 
to  his  wrong,  injury,  and  damage  in  the  sum  of  two  hundred  dol- 
lars. 

That  the  value  of  the  rents  and  profits  of  the  said  land  and 
premises  is  two  hundred  atid  fifty  dollars  per  month,  and  that  by 
reason  of  the  unlawful  withholding  of  the  said  land  by  the  de- 
fendant, as  aforesaid,  plaintiff  has  been  deprived  of  said  rents 
since  the  first  day  of  January,  igo6,  and  by  the  continuance  there- 
of will  he  deprived  of  the  use  and  occupation  of  the  same,  to  his 
loss  and  damage  in  the  sum  of  seven  hundred  and  fifty  dollars. 

Wherefore,  the  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  restitution  of  said  land  and  premises,  and  for 
the  sum  of  five  hundred  dollars  damages  for  the  withholding 
thereof,  and  two  hundred  and  fifty  dollars  damages  caused  by  the 
loss  of  the  value  of  the  rents  and  profits  thereof,  together  with 
his  costs  of  suit. 


No.  920. — Complaint — Ejectment. 
[Title  of  Court  and  Cause.] 

/.  D.,  the  plaintiff  in  the  above-entitled  action,  complaining 
of  R.  R.,  the  defendant  in  said  action,  alleges: 

That  he  was,  on  the  first  day  of  June,  igo6,  and  for  two  years 
and  upwards  next  prior  thereto  had  been,  lawfully  possessed,  and 
is  now  entitled  to  the  possession,  of  that  certain  piece  of  land, 


Complaint — Pleadings.  543 

situate  in  the  city  and  county  of  San  Francisco,  state  of  Califor- 
nia, described  as  follows:   [Description.] 

That  the  plaintiff  being  so  possessed,  the  defendant  afterward, 
on  the  second  day  of  June,  igo6,  unlazvfully  entered  into  the  pos- 
session of  the  demanded  premises,  and  ousted  the  plaintiff,  and 
now  unlawfully  withholds  the  possession  thereof  from  the  plain- 
tiff, to  his  damage  in  the  sum  of  one  hundred  dollars. 

That  the  value  of  the  rents,  issues,  and  profits  of  the  said 
premises  from  the  said  second  day  of  June,  IQ06,  and  while  the 
plaintiff  has  been  excluded  therefrom  by  the  defendant,  is  iiz'e 
hundred  dollars. 

Wherefore,  the  plaintiff  prays  judgment  against  the  defendant 
for  the  restitution  of  the  possession  of  the  demanded  premises, 
and  for  the  sum  of  one  hundred  dollars,  for  the  withholding  there- 
of, together  with  the  sum  of  five  hundred  dollars,  the  value  of 
the  said  rents,  issues,  and  profits,  and  costs  of  suit. 


No.  921. — Complaint — Engineer,  Injuries  to. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  eighth  day  of  August,  igo6,  the  defendant  was 
a  corporation,  duly  incorporated  under  and  pursuant  to  the  laws 
of  the  state  of  California,  and  was  the  owner  of  a  certain  rail- 
road, and  of  a  locomotive  propelled  by  steam  on  said  railroad, 
and  by  said  defendant  used  and  employed  in  carrying  and  convey- 
ing passengers  and  goods  [or  hauling  trains  of  cars  containing 
passengers  and  goods],  upon  and  over  the  said  railroad  of  the 
said  defendant,  from  L.  to  F. 

2.  That  the  said  plaintiff  on  the  day  and  year  aforesaid,  at  L. 
aforesaid  and  at  the  time  of  the  committing  of  said  grievances, 
was  in  the  employ  of  the  said  defendant,  as  engineer  upon  said 
locomotive,  so  moved  and  propelled  by  steam  as  aforesaid,  and 
that  it  then  and  there  became,  and  was  the  duty  of  the  said  de- 
fendant to  procure  a  good,  safe,  and  secure  locomotive,  with 
good,  safe,  and  secure  machinery  and  apparatus,  t«  move  an^l 
propel  the  same  as  aforesaid. 

3.  That  the  said  defendant  conducted  itself  so  carelessly,  neg- 
ligently, and  unskillfully,  that  by  and  through  the  carelessness, 
negligence,  and  default  of  the  said  defendant  and  its  servants,  it 
provided,  used,  and  suffered  to  be  used,  an  imsafe,  defective,  and 
insufficient  locomotive,  of  all  of  which  it  had  notice. 

4.  That  for  want  of  due  care  and  attention  to  its  duty  in  that 
behalf,  on  the  said  eighth  day  of  August,  igo6,  at  L.,  aforesaid, 
and  while  the  said  locomotive  was  in  the  use  and  service  of  said 


544  New  Book  of'  Forms. 

defendant,  upon  said  railroad,  and  whilst  the  said  plaintiff  was 
on  the  same,  in  the  capacity  aforesaid,  for  the  said  defendant,  the 
boiler  connected  with  the  engine  of  the  said  locomotive,  by  reason 
of  the  unsafeness,  defectiveness,  and  insecurity  thereof,  exploded, 
whereby  large  quantities  of  steam  and  water  escaped  therefrom, 
and  fell  upon  the  said  plaintiff,  by  which  he  was  greatly  scalded, 
burnt,  and  wounded,  and  became  sick,  sore,  and  disordered,  and 
so  remained  for  the  space  of  one  month,  and  was  compelled  to  ex- 
pend the  sum  of  $1,500  for  medical  attendance,  and  was  pre- 
vented from  attending  to  his  ordinary  business,  and  lost  all  the 
wages  he  otherwise  would  have  earned,  to  wit,  the  sum  of  $1,000, 
to  his  damage  $2,500. 


No.  922. — Complaint — Executor,  by. 

[Title  of  Court  and  Cause.] 
The  plaintiff,  as  such  executor,  complains,  and  alleges: 

1.  [State  cause  of  action.] 

2.  That  the  said  C.  D.  in  his  lifetime  made  and  published  his 
last  will,  whereby  he  appointed  the  plaintiff  executor  thereof. 

3.  That  on  the  Hfth  day  of  January,  1905,  at  K.  L.,  the  said 
C.  D.  died. 

4.  That  on  the  tzvelfth  day  of  January,  igo6,  at  K.  L.,  said 
will  was  proved  and  admitted  to  probate,  in  the  superior  court 
in  the  county  of  Tulare,  in  this  state. 

5.  That  thereupon,  on  the  fifteenth  day  of  January,  1906,  let- 
ters testamentary  were  issued  on  the  said  will  to  the  plaintiff,  by 
the  superior  court  of  said  county. 

6.  That  thereupon  the  plaintiff  duly  qualified  and  entered  upon 
the  discharge  of  his  duties  as  executor,  and  that  said  letters  tes- 
tamentary have  not  been  revoked. 


No.  923. — Complaint — Executor  v.  Railroad  Company. 

[Title  of  Court  and  Cause.] 

The  plaintiff,  as  the  executor  [or  administrator]  of  the  estate 
of  A.  B.,  deceased,  complains,  and  alleges: 

1.  That  on  the  ninth  day  of  August,  1906,  the  defendant  was 
a  corporation,  duly  organized  by  [or  under]  the  laws  of  this  state, 
and  was  a  common  carrier  of  passengers,  for  hire,  by  railroad, 
between  M.  and  N. 

2.  That  on  that  day  said  defendant  received  one  A.  B.  into  its 
cars,  for  the  purpose  of  conveying  him  therein  as  a  passenger 
from  M.  to  N.  for  $500  paid  to  them  by  said  A.  B. 


Complaint — Pleadings.  545 

3.  That  while  he  was  such  passenger,  at  L.,  a  station  on  the 
line  of  the  said  railroad,  by  and  through  the  carelessness  of  the 
defendant  and  its  servants,  a  collision  occurred  by  which  the 
cars  of  said  railroad  were  thrown  from  the  track,  and  the  car  in 
which  the  said  A.  B.  then  was  zvas  precipitated  down  an  embank- 
ment, and  the  said  A.  B.  was  thereby  killed  [or  as  the  case  may 
he]. 

4.  That  on  the  tzi'cnty-sex'enth  day  of  August,  IQ06,  letters  of 
administration  upon  the  estate  of  the  said  A.  B.  were  duly  issued 
by  the  superior  court  of  the  county  of  Sierra  to  the  plaintiff,  by 
which  he  was  appointed  administrator  of  the  estate  of  the  said 
A.  B.,  deceased,  and  he  thereupon  was  qualified  and  entered  upon 
his  duties  of  such  administration,  and  he  is  now  the  administra- 
tor of  the  said  estate. 

5.  That  by  reason  of  the  premises  the  plaintiff,  as  such  execu- 
tor [or  administrator],  hath  sustained  damages  in  the  sum  of 
$2,pgo. 


No.  924. — Complaint — Fire,  Cargo  Lost  by. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains  and  alleges: 

1.  [Allege  incorporation  as  heretofore.] 

2.  That  plaintiff  was  the  owner  of  [or  had  an  interest  in]  two 
hundred  barrels  of  flour,  shipped  on  board  the  vessel  called  the 
A.  D.,  from  M.  to  .V.,  at  tlie  time  of  the  insurance  and  loss  here- 
inafter mentioned. 

3.  That  on  the  fourth  day  of  January,  igo6,  at  M.,  the  defend- 
ant, in  consideration  of  $2^,  which  the  plaintiff  then  paid,  exe- 
cuted to  him  a  policy  of  insurance  upon  the  said  goods,  a  copy  of 
which  is  hereto  annexed,  marked  "Exhibit  A,"  and  made  part  of 
this  complaint  [or  whereby  it  promises  to  pay  to  the  plaintiff 
$2,000  in  case  of  the  total  loss,  by  fire  or  other  causes  mentioned, 
of  the  said  goods,  before  their  landing  at  A''.,  or  in  case  of  partial 
damage,  such  loss  as  the  plaintiff  might  sustain  thereby,  pro- 
vided the  same  should  not  exceed  fifty  per  centum  of  the  whole 
value  of  the  goods]. 

4.  That  on  the  tzvcnty-Hrst  day  of  March,  1006.  at  C,  while 
proceeding  on  the  voyage  mentioned  in  the  said  policy,  the  said 
goods  were  totally  destroyed  by  fire. 

5.  That  the  plaintiff's  loss  thereby  was  $2,000. 

6.  That  on  the  first  day  of  April,  igo6,  he  furnished  the  defend- 
ant with  proof  of  his  loss  and  interest,  and  otherwise  performed 
all  the  conditions  of  the  said  policy  on  his  part. 

New  Forms — 35 


546  New  Book  of  Forms. 

7.  That  the  defendant  has  not  paid  the  said  loss,  nor  any  part 
thereof. 

[Ainicx  copy  of  policy,  marked  "Exhibit  A."] 


No.  925. — Complaint — Furniture,  Hire  of. 

[Title  of  Court  and  Cause.] 

The  plaintiff  complains,  and  alleges: 
First — For  a  first  cause  of  action: 

1.  That  on  the  second  day  of  March,  ipo6,  at  M.,  the  plaintiff 
rented  to  the  defendant,  and  the  defendant  hired  from  the  plain- 
tiff, household  furniture,  plate,  pictures,  and  books,  the  property 
of  the  plaintiff,  to  wit  [describe  the  articles],  for  the  space  of 
three  years,  then  next  ensuing,  to  be  returned  by  him  to  the  plain- 
tiff at  the  expiration  of  said  time,  in  good  condition,  reasonable 
wear  and  tear  thereof  excepted.  * 

2.  That  he  promised  to  pay  the  plaintiff  for  the  use  thereof 
$^00,  in  equal  monthly  payments,  on  the  second  day  of  each 
month  thereafter. 

3.  That  no  part  thereof  has  been  paid. 
Second — For  a  second  cause  of  action: 

1.  [Allege  as  in  preceding  form.] 

2.  The  plaintiff  further  alleges  that  the  value  of  the  property 
JO  hired  by  the  defendant  as  above  alleged,  was  $2,p^o. 

3.  That  the  defendant,  in  violation  of  his  said  agreement  to 
return  the  same  in  good  condition,  neglected  the  same,  and 
through  his  negligence,  carelessness,  and  ill-use,  the  same  became 
broken,  defaced  and  injured  beyond  the  reasonable  wear  thereof, 
and  in  that  condition  were  returned  to  the  plaintiff,  to  his  dam- 
age $300. 


No.  926. — Complaint — Goods,  Price  of. 

(Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  sixth  day  of  March,  ipo6,  at  P.,  the  defendant, 
in  consideration  of  his  reasonable  commissions,  agreed  with  plain- 
tiff to  sell  for  plaintiff  certain  goods  [fifty  barrels  of  flour]. 

2.  That  on  the  tenth  day  of  March,  1906,  at  P.,  he  delivered 
to  defendant  fifty  barrels  of  flour,  for  sale  upon  commission. 

3.  That  on  the  twenty-fifth  day  of  March,  1906  [or  on  some 
other  day  unknown  to  the  plaintiff,  before  the  thirtieth  day  of 
March,  ipo6],  the  defendant  sold  tlie  said  merchandise  for  $3po^ 


Complaint — Pleadings.  547 

4.  That  the  commission  and  expenses  of  the  defendant  thereon 
amounted  to  $i^. 

5.  That  on   the  fourth   day  of  April,   igo6,  the  plaintiff   de- 
manded from  the  defendant  the  proceeds  of  the  said  merchandise, 

6.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 


No.  927. — Complaint — Guardian — Infant  vs. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  he  is  under  the  ag-e  of  hventy-one  years. 

2.  That  on  the  twenty-sez>enth  day  of  April,  jpo6,  at  C,  the 
above-named  C.  D.  was  duly  appointed  by  the  superior  court  of 
Yjiba  county,  state  of  California,  guardian  of  the  property  and 
person  of  the  plaintiff. 

3.  [State  the  cause  of  action.] 


No.  928. — Complaint — Infant — Guardian  by. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  he  is  under  the  age  of  ttvcnty-one  years,  to  wit,  of  the 
age  of  nineteen  years. 

2.  That  on  the  second  day  of  May,  1906,  at  C,  the  above- 
named  C.  D.  was  duly  appointed  by  the  superior  court  of  the 
county  of  Sonoma,  state  of  California,  the  guardian  of  the  above- 
named  A.  B.,  for  the  purposes  of  this  action. 

3.  [State  the  cause  of  actioyi.] 


No.    929. — Complaint — Guardian — Insane    Person   by. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  [State  the  cause  of  action.'] 

2.  That  on  the  tzvcnty-first  day  of  June,  1906,  at  the  county  of 
Napa,  state  of  California,  the  superior  judge  of  said  county,  upon 
the  petition  of  L.  M.,  and  after  due  notice  and  hearing,  adjudged 
the  said  C.  D.  to  be  an  insane  person  [or  incapable  of  taking  care 
of  himself  and  managing  his  property]. 

3.  That  afterward,  on  the  same  day  of  June,  1906,  at  said 
county,  said  superior  judge  appointed  the  plaintiff  guardian  of 


548  Is'lCw  Book  of  Forms. 

the  person  and  estate  of  the  said  C.  D.;  that  he,  this  plaintiff, 
has  g-iven  bond  as  required  by  law,  and  still  and  now  is  guardian 
of  the  said  C.  D.,  as  aforesaid. 


No.  930. — Complaint — Guardian  of  Insane  Person  vs. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  [State  a  cause  of  action  against  an  insane  person.] 

2.  That  afterward  [or  on  the  second  day  of  July,  ipo6],  the 
said  B.  F.  was  adjudged  by  the  superior  court  to  be  a  person  of 
unsound  mind. 

3.  That  the  defendant  was,  on  the  eighth  day  of  July,  igo6, 
appointed  by  the  said  court  guardian  of  the  person  and  estate  of 
the  said  B.  F.;  that  he  the  defendant,  accepted  said  appointment, 
and  is  now  such  guardian. 

\A'herefore,  the  plaintiff  demands  judgment  for  $750,  with  in- 
terest from  June  22,  IQ06,  to  be  paid  out  of  the  estate  of  the  said 
B.  F.,  in  the  hands  of  the  defendant. 


No.  931. — Complaint — Holding  Over. 

[Title  of  Court  and  Cause.] 

/.  D.,  the  plaintiff  in  the  above-entitled  action,  complaining 
of  R.  R.,  the  defendant  in  said  action,  alleges: 

T.  That  on  or  about  the  first  day  of  December,  igo6,  the  said 
plaintiff,  by  a  verbal  agreement  and  lease,  made  on  or  about  the 
said  day,  at  the  city  and  county  of  San  Francisco,  leased,  de- 
mised, and  let  to  the  said  defendant,  R.  R.,  of  the  said  city  and 
county  of  San  Francisco,  the  premises  situate,  lying,  and  being  in 
the  city  and  county  of  San  Francisco,  state  of  California;  and  de- 
scribed as  follows,  to  wit:    [Here  describe  premises.] 

To  have  and  to  hold  the  said  premises  to  the  defendant  for  one 
month,  and  from  month  to  month  thereafter,  at  the  monthly  rent 
of  fifty-six  dollars  and  fifty  cents,  payable  monthly  on  the  first 
day  of  each  and  every  month  thereafter,  in  advance,  in  lawful 
money  of  the  United  States. 

2.  That  by  virtue  of  said  agreement  and  lease,  so  made,  as 
aforesaid,  the  defendant,  R.  R.,  went  into  the  possession  and  oc- 
cupation of  said  demised  premises,  and  still  continues  to  hold 
and  occupy  the  same  as  tenant  of  said  plaintiff,  as  aforesaid. 

3.  That  pursuant  to  the  terms  of  said  agreement  and  leas«, 
there  became  and  was  due  on  the  first  day  of  January,  ipo6,  from 


Complaint — Pleadings.  549 

said  defendant  to  said  plaintifT,  for  the  rent  of  said  premises,  for 
one  month  in  advance,  to  wit,  from  the  first  day  of  January,  IQ06, 
to  the  first  day  of  February,  iQod,  the  sum  of  fifty-six  dollars  and 
fifty  cents,  lawful  money  of  the  United  States,  amounting  to  the 
sum  of  $56.^0.  [Here  insert  amount  of  rent  unpaid  for  pre- 
vious months.] 

4.  That  on  a  certain  day,  to  wit,  the  sixth  day  of  January,  igo6, 
at  said  city  and  county  of  San  Francisco,  demand  in  writins^  for 
the  amount  due,  to  wit,  $§6.^0,  was  duly  made  by  said  plaintiff 
of  said  defendant,  for  and  requirins^  the  payment  of  said  rent 
then  due,  amounting  to  the  said  sum  of  fifty-six  dollars  and  fifty 
cents,  or  the  possession  of  said  demised  property,  but  said  de- 
fendant neglected  and  refused  for  the  space  of  three  whole  days 
and  upwards,  after  demand  so  made,  as  aforesaid,  and  still  neg- 
lects and  refuses,  to  pay  said  rent  or  surrender  possession  of  said 
premises. 

5.  That  said  defendant,  R.  R.,  unlawfully  holds  over  and  con- 
tinues in  the  possession  of  said  premises  after  default  in  the  pay- 
ment of  said  rent,  pursuant  to  the  lease  and  agreement  under 
which  said  property  is  held,  and  without  the  permission  of  the 
plaintifT ;  by  reason  whereof  the  plaintiff  has  already  sustained 
damages  in  the  sum  of  fzventy-eight  dollars  and  tivcnty-five  cents, 
lawful  money  of  the  United  States,  for  the  rent  of  said  premises 
actually  accrued  from  the  first  day  of  January,  /pod,  to  the  time 
of  the  commencement  of  this  suit. 

Wherefore,  said  plaintiff  prays  judgment  against  said  defend- 
ant for  the  restitution  and  possession  of  said  premises,  and  for 
the  sum  of  twenty-eight  dollars  and  tzventy-five  cents,  the  amount 
now  due  and  unpaid  for  the  rent  thereof,  and  such  further  sum 
as  may  accrue  from  the  time  of  filing  this  complaint  to  the  ren- 
dition of  judgment  herein,  and  that  the  amount  found  due  for 
rent  may  be  trebled  and  made  payable  in  the  lawful  money  of 
the  United  States,  and  also  for  the  costs  of  this  suit,  and  that  by 
said  judgment  it  be  declared  that  said  lease  (or  agreement)  under 
which  said  defendant  holds  be  forfeited,  and  that  writ  of  posseS' 
sion  issue  fortJiwith. 


No.  932. — Complaint — Holding  Over — Expiration  of  Term. 

[Title  of  Court  and  Cause.] 

/.  D.,  the  plaintiff  in  the  above -en  titled  action,  complaining  of 
R.  R.,  the  defendant  in  said  action,  alleges: 

I.  That  on  or  about  the  first  day  of  December,  ipo6,  the  said 
plaintiff,  by  a  written  lease  made  on  or  about  the  said  day,  at  the 
said  county  of  San  Mateo,  leased,  demised,  and  let  to  the  said 


550  New  Book  of  Forms. 

defendant,  R.  R.,  of  the  said  county  of  San  Mateo  the  premises 
situate,  lying  and  being  in  the  said  county  of  San  Mateo,  state  of 
California,  and  described  as  follows,  to  wit:  [Insert  description.] 
To  have  and  to  hold  the  said  premises  to  the  defendant,  for  the 
term  of  one  year  from  the  Urst  day  of  December,  ipo6,  at  the 
yearly  rent  of  six  hundred  (600)  dollars,  payable  in  equal 
"monthly  installments  in  advance.  That  by  virtue  of  said  lease, 
said  defendant,  R.  R.,  went  into  possession  of  said  premises,  and 
still  continues  to  hold  and  occupy  the  same. 

2.  That  the  term  for  which  said  premises  were  demised,  as 
aforesaid,  has  terminated,  and  that  the  said  defendant  holds  over 
and  continues  in  possession  of  the  said  demised  premises,  with- 
out the  permission  of  the  said  plaintiff  and  contrary  to  the  terms 
of  said  lease. 

3.  That  the  said  plaintiff,  since  the  expiration  of  the  term  for 
which  said  premises  were  demised,  as  aforesaid,  to  wit,  on  the 
fourth  day  of  December,  igo6,  made  demand,  in  writing,  of  the 
said  defendant  to  deliver  up  and  surrender  to  him  the  possession 
of  said  premises. 

That  more  than  three  days  have  elapsed  since  the  making  of 
such  demand,  and  the  defendant  has  refused  and  neglected,  for 
the  space  of  three  days  after  such  demand,  to  quit  the  possession 
of  said  demised  premises,  and  still  does  refuse. 

That  the  monthly  value  of  the  rents  and  profits  of  the  said 
premises  is  the  sum  of  iifty  (30)  dollars,  gold  coin  of  the  United 
States. 

Wherefore,  the  said  plaintiff  prays  judgment  for  the  restitu- 
tion of  the  said  premises,  and  for  damages  for  the  rents  and 
profits  of  said  premises,  and  that  such  damages  may  be  trebled 
as  damages  for  the  occupation  and  unlawful  detention  and  hold- 
ing over  of  the  same,  amounting  to  the  sura  of  fifty  dollars  per 
month,  besides  costs  of  suit. 


No.  933. — Complaint — Horse  Driving,  Different  Journey. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  ttventy-fonrth  day  of  January,  TQ06,  at  P.,  the 
defendant  hired  and  received  from  the  plaintiff  a  horse  and  car- 
riage, of  the  value  of  $330,  the  property  of  the  plaintiff,  to  drive 
from  M.  to  A^.,  and  not  elsewhere. 

2.  That  the  defendant,  in  violation  of  the  agreement,  per- 
formed a  different  journey  than  that  aforesaid,  and  drove  said 
horse  and  carriage  from  M.  to  O. 


CoMPi^MNT — Pleadings.  551 

3.  That  he  did  not  take  proper  care  of  said  horse  and  car- 
riac^e,  but  so  ne^Hp:ently  drove  and  managed  the  same  that  the 
carriage  was  broken,  to  the  damage  of  plaintiff  $3^3. 


No.  934. — Complaint — Husband  and  Wife  vs. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains  of  the  defendants,  and  alleges: 

1.  That  between  the  tenth  day  of  February,  IQ06  and  the 
fifteenth  day  of  June,  1906,  at  A.,  the  plaintiff  sold  and  delivered 
to  the  defendant  A.  B.,  who  then  was,  and  still  is,  the  wife  of 
C.  B.,  at  her  request,  materials  used  for  the  building  of  a  house 
for  her,  upon  and  for  tlie  benefit  of  her  separate  lands  and  prop- 
erty. 

2.  That  said  materials  were  of  the  agreed  price  and  value  [or 
were  reasonably  worth  the  sum]  of  $2,j00,  and  that  no  part 
thereof  has  been  paid. 

Wherefore,  the  plaintiff  demands  judgment  against  the  defend- 
ants for  the  said  sum  of  $2,^00,  and  interest  thereon  from  the 
tenth  day  of  February,  ipo6,  and  costs  of  suit. 


No.  935. — Complaint — Husband  and  Wife  vs. 
[Title  of  Court  and  Cause.] 

The  plaintiff  complains  of  the  said  C.  D.  and  B.,  his  wife,  the 
defendants,  for  that  the  said  B.,  heretofore,  whilst  she  was  sole 
and  unmarried,  on  the  sixth  day  of  July,  ipo6,  at  [place  of  date], 
made  her  certain  promissory  note  in  writing  of  that  date,  and 
then  and  there  delivered  the  same  to  the  said  plaintiff,  and  there- 
by promised,  by  her  then  name  of  B.  F.,  to  pay  to  the  said  plain- 
tiff, or  order,  the  sum  of  $100  in  gold  coin,  after  the  date  thereof; 
and  the  said  E.  F.  has  since  intermarried  with  the  said  C  D.; 
yet  the  said  defendants  have  not,  nor  hath  either  of  them,  paid 
the  said  sum  of  money,  or  any  part  thereof,  to  the  said  plaintiff. 

Wherefore,  the  said  plaintiff  prays  judgment  against  the  said 
defendants  for  the  said  sum  of  $1,000,  together  with  interest 
thereon  from  the  sixth  day  of  July,  1906,  and  costs  of  suit 


No.  936. — Complaint — Imprisonment,  False, 
[Title  of  Court  and  Cause.] 

The  plaintiff  complains  and  alleges: 

I.  That  on  the  twelfth  day  of  July,  1006,  at  P.,  the  defendant 
imprisoned  him  for  ten  days  [or  hours,  as  the  case  may  be\,  with- 


552  New  Book  of  Forms. 

cut  probable  cause  [state  special  damages,  if  any],  to  the  damage 
of  the  plaintiff  $1^30. 


No.  937. — Complaint — Insolvent,  Carelessly  Selling  to. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  nineteenth  day  of  January,  ipo6,  at  M.,  the  de- 
fendant undertook  with  the  plaintiff,  as  his  agent,  and  for  the 
compensation  to  be  paid  by  him,  to  sell  for  him  goods  of  the 
plaintiff,  to  wit  [designate  goods],  of  the  value  of  $i,y§0,  and 
thereupon  received  the  same  from  him  for  that  purpose. 

2.  That  the  defendant  did  not  use  due  diligence  to  sell,  or  in 
selling  the  same,  but  negligently  sold  the  said  goods  for  the 
plaintiff  to  a  person  in  embarrassed  circumstances,  then  well 
knowing  said  person's  financial  embarrassments,  without  receiv- 
ing the  price  therefor,  or  taking  security  for  the  payment  thereof; 
whereby  the  plaintiff  has  hitherto  lost,  and  is  likely  wholly  to 
lose,  the  price,  to  plaintiff's  damage  $1,750. 


No.  938. — Complaint — Insurance — Fire  Policy. 

[Title  of  Court  and  Cause.] 

[Allege  as  in  the  form  "On  Fire  Policy  by  Insured,"  substi- 
tuting the  original  insured's  name  for  the  word  "plaintiff,"  down 

to  ''5-"] 

5.  That  on  the  -fifteenth  day  of  January,  igo6,  the  said  insured 
made,  executed,  and  delivered  to  plaintiff  his  mortgage  on  said 
premises,  to  secure  the  sum  of  $200,  and  assigned  said  policy  to 
said  plaintiff,  as  further  security,  and  thereupon  defendant,  at  the 
request  of  plaintiff  and  of  the  insured,  indorsed  on  said  policy, 
"Loss,  if  any,  payable  to  plaintiff." 

6.  That  said  mortgage  and  the  debt  secured  thereby  is  wholly 
unpaid  and  unsatisfied. 

[Continue  as  in  preceding  form.] 


No.  939. — Complaint — Insurer  vs.   Insured — Fire   PoHcy. 
[Title  of  Court  and  Cause.] 

The  plaintiff  complains,  and  alleges: 

That  the  defendants  are  a  corporation   duly  created  by  and 
vnder  the  laws  of  this  state  [or  the  state  of,  etc.],  organized  pur- 


Complaint — Pleadings  553 

suant  to  an  act  of  the  legislature  of  said  state,  entitled  \titlc  of 
the  act],  passed  [date  of  passage],  and  the  acts  amending  the 
same. 

2.  That  the  plaintiff  was  the  owner  of,  [or  had  an  interest  in] 
a  dwelling-house,  known  as  No.  200  M.  street,  in  the  city  of  P., 
at  the  time  of  its  insurance  and  destruction  [or  injury]  by  fire  as 
hereinafter  mentioned. 

3.  That  on  the  twenty-second  day  of  October,  igo6,  y':  P.,  in 
consideration  of  the  payment  by  the  plaintiff  to  the  defendants 
of  the  premium  of  $20,  the  defendants,  by  their  agents  duly  au- 
thorized thereto,  made  their  policy  of  insurance  in  writing,  a 
copy  of  which  is  annexed  hereto,  and  made  part  of  this  complaint. 

4.  That  on  the  tzventy-ninth  day  of  November,  igo6,  said 
dwelling-house  and  furniture  were  totally  destroyed  \or  greatly 
damaged,  and  in  part  destroyed]  by  fire. 

5.  That  the  plaintiff's  loss  thereby  was  $2,000. 

6.  That  on  the  third  day  of  December,  jqo6,  he  furnished  the 
defendant  with  proof  of  his  said  loss  and  interest,  and  otherwise 
performed  all  the  conditions  of  said  policy  on  his  part. 

7.  That  defendant  has  not  paid  the  said  loss,  nor  any  part 
thereof. 

[Amicxed  a  copy  of  policy.] 

No.  940. — Complaint — Insurance — Fire  Policy  by  Purchaser. 
[Title  of  Court  and  Cause.] 

1.  [Allege  incorporatio-n  as  in  last  form.] 

2.  That  [name  of  original  insured]  was  the  owner  of,  or  had 
an  interest  in,  etc.,  etc. 

3.  [The  same  as  in  last  form,  substituting  the  names  of  the 
original  insured,  instead  of  the  words  "the  plaintiff ."] 

4.  That  on  the  fifth  day  of  September,  igo6,  at  0.,  the  consent 
of  the  defendants,  in  writing,  on  said  policy,  by  their  said  agents, 
the  said  [original  insured],  sold,  assigned,  and  conveyed  to  the 
plaintiff,  his  interest  in  the  said  property  and  in  the  said  policy 
of  insurance.      [Continue  as  in  last  form.] 


No.   941. — Complaint — Insurance — Life   Policy,   Executor  by. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  [Alhge  incorporation  as  heretofore.] 

2.  That  on  the  twenty-sezrnfh  day  of  April,  ipo6,  at  M.,  the 
defendant,  in  consideration  of  the  [annual,  semi-annual,  or  other- 


554  Nsvv  Book  of  Forms. 

Ttnse]  pa\Tnent  by  one  A.  B.,  to  it  of  $i,ooo,  made  their  policy  of 
insurance,  in  writing,  of  which  a  copy  is  hereto  annexed,  marked 
"Exhibit  A,"  and  made  part  of  this  complaint,  and  thereby  in- 
sured the  Hfe  of  said  A.  B.  in  the  sum  of  $20,000. 

3.  That  on  the  thirtieth  day  of  June,  1905,  at  M.,  the  said  A. 
B.  died. 

4.  That  on  the  twenty-eighth  day  of  June,  1905,  at  M.,  said 
A.  B.  left  a  will,  by  which  the  plaintiff  was  appointed  the  sole 
executor  thereof  [or  this  plaintiff  and  C.  D.  were  appointed  ex- 
ecutors thereof]. 

5.  That  on  the  third  day  of  July,  1906,  said  will  was  duly  ap- 
proved and  admitted  to  probate  in  the  superior  [or  other']  court 
of  the  county  of  M.,  and  letters  testamentary  thereupon  were 
thereafter  issued  and  granted  to  the  plaintiff,  as  sole  executor 
[or  otherivise],  by  the  superior  [or  other]  court  of  said  county; 
and  this  plaintiff  thereupon  duly  qualified  as  such  executor,  and 
entered  upon  the  discharge  of  the  duties  of  his  said  office. 

6.  That  on  the  fifth  day  of  July,  1906,  the  plaintiff  furnished 
the  defendant  with  proof  of  the  death  of  the  said  A.  B.,  and  the 
said  A.  B.  and  the  plaintiff  each  duly  performed  all  the  condi- 
tions of  said  insurance  on  their  part. 

7.  That  the  defendant  has  not  paid  the  same,  and  the  said 
sum  is  now  due  thereon  from  the  defendants  to  the  plaintiff,  as 
such  executor. 


No.  942. — Complaint — Insurance,  Life  Policy — ^Wife,  Partner 
or  Creditor,  by. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  fifth  day  of  September,  1906,  at  R.,  the  defend- 
ant, in  consideration  of  the  [annual  or  otherwise]  payment  to  it 
of  $800,  executed  to  the  plaintiff  a  policy  of  insurance  on  the 
life  of  her  husband,  A.  B.,  of  which  a  copy  is  hereto  annexed, 
and  made  a  part  of  this  complaint,  and  marked  "Exhibit  A." 

2.  That  the  plaintiff  had  a  valuable  interest  in  the  life  of  the 
said  A.  B.,  at  the  time  of  his  death,  and  at  the  time  of  effecting 
the  said  insurance   [state  nature  of  interest]. 

3.  That  on  the  twenty-fir '■'■  day  of  October,  1906,  at  R.,  the 
said  A.  B.  died. 

4.  That  on  the  tzventy-third  day  of  October,  1906,  the  plaintiff 
furnished  the  defendant  with  proof  of  the  death  of  the  said  A.  B., 
and  otherwise  performed  all  the  conditions  of  the  said  policy  on 
her  part. 


Complaint — Pleadings.  555 

5.  That  the  defendant  has  not  paid  the  said  sum,  nor  an/  part 
thereof. 

[Annexed  a  copy  of  policy,  marked  "Exhibit  A."] 


No.  943. — Complaint — Justice's  Judgment. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges : 

1.  That  on  the  thirteenth  day  of  March,  ipo6,  at  P.,  before  /. 
P.,  a  justice  of  the  peace  in  and  for  the  town  of  P.,  county  of 
Butte,  in  this  state,  the  plaintiff  recovered  a  judgment,  which  was 
duly  given  by  said  justice  against  the  defendant  for  $t^o  dam- 
ages and  $jo  costs,  in  an  action  wherein  this  plaintiff  was  plain- 
tiff, and  the  defendant  herein  was  defendant. 

2.  That  on  the  thirtieth  day  of  March,  1906,  a  transcript  of 
the  same  zvas  Hied  and  docketed  in  the  oMce  of  the  clerk  of  the 
county  of  Butte,  in  this  state,  in  whi-ch  county  the  defendant  then 
resided. 

3.  That  on  the  fifteenth  day  of  April,  igo6,  an  execution  was 
duly  issued  upon  the  said  judgment  against  the  property  of  the 
defendant,  and  addressed  to  the  sheriff  of  said  Butte  county. 

[Continue  as  in  complaint  on  judgment  of  superior  court.] 


No.  944. — Complaint — Foreign  Judgment  on, 

[Title  of  Court  and  Cause.] 

The  plaintiff  complains,  and  alleges: 

1.  That  at  the  times  hereinafter  mentioned,  the  court  of  com- 
mon pleas,  in  and  for  the  county  of  R.,  in  the  state  of  Ohio,  was 
a  court  of  general  jurisdiction,  duly  created  and  organized  by 
the  laws  of  said  state. 

2.  That  on  the  tzventy-first  day  of  May,  1906,  the  plaintiff 
commenced  an  action  in  said  court  against  the  defendant  by  the 
issuance  of  summons  [or  other  process,  as  the  case  may  be], 
which  summons  was  duly  and  personally  served  upon  said  de- 
fendant [or  in  which  action  the  defendant  appeared  in  person, 
or  by  attorney].  That  thereupon  such  proceedings  were  had 
therein  in  said  court,  that  on  the  tzventy-fourth  day  of  July,  igo6, 
a  judgment  for  the  sum  of  $3/6  was  duly  given  and  made  by 
said  court  in  favor  of  the  plaintiff,  and  against  the  defendant 

3.  That  no  part  thereof  has  been  paid,  except,  etc. 


556  Ndw  Book  of  Forms. 


No.  945. — Complaint — Lease,  Promise  to  Surrender. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  at  the  time  hereinafter  mentioned,  the  plaintiff  leased 
from  the  defendant  a  house  and  lot  in  the  town  of  D.,  for  a  term 
commencing  on  the  second  day  of  February,  1906,  and  ending  on 
the  second  ddcf  of  August,  ipo6,  under  which  he  was  entitled  to 
the  possession  of  said  house  and  lot. 

2.  That  on  the  second  day  of  May,  ipo6,  the  defendant  prom- 
ised the  plaintiff  that  in  consideration  that  he,  the  plaintiff,  would 
surrender  to  the  defendant  the  unexpired  term  and  the  posses- 
sion, he  would  pay  the  plaintiff  the  sum  of  $1,500. 

3.  That  the  plaintiff  thereupon  surrendered  the  unexpired  term 
of  said  lease,  and  the  possession  of  said  land  to  the  defendant 

4.  That  no  part  of  said  svun  has  been  paid. 


No.  946. — Complaint — Crime,  Charge  of — Words  not  Libelous. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  at  the  time  hereinafter  mentioned,  the  dwelling-house 
of  the  defendant  had  been  burned  down,  and  it  was  suspected 
that  it  had  been  feloniously  set  on  fire. 

2.  That  on  the  twentieth  day  of  July,  1904,  at  P.,  the  defend- 
ant published  in  a  newspaper,  called  the  Netus,  the  following 
words  concerning  the  plaintiff:  "One  A.  B.  kindled  the  fire,  and 
I  can  prove  it." 

3.  That  the  defendant  meant  thereby  that  the  plaintiff  had 
feloniously  set  fire  to  said  house. 

4.  That  the  said  publication  was  false  and  defamatory. 

5.  That  plaintiff  hath  sustained  damage  by  reason  of  said  false 
and  defamatory  pubHcation  in  the  sum  of  $2,250. 


No.  947. — Complaint — Libel,  Composing  a. 

[Title  of  Court  and  Cause.] 

The  plaintiff  complains,  and  alleges: 

I.  That  before  the  committing  of  the  grievances  by  the  de- 
fendant hereinafter  mentioned,  a  certain  action  had  been  pending 


Complaint — PlivAdincs.  557 

in  the  superior  court  of  the  county  of  Humboldt,  state  of  Califor- 
nia, wherein  one  A.  B.  was  plaintiflF,  and  one  C.  D.  was  defend- 
ant, and  which  action  had  been  then  lately  tried  in  said  court, 
and  on  such  trial  the  plaintiff  herein  was  examined  on  oath,  and 
had  given  his  evidence  as  a  witness  in  behalf  of  the  said  A.  D. 

2.  That  on  the  tzventy-second  day  of  July,  jpo6,  at  P.,  the  de- 
fendant published  in  a  newspaper  called  the  News,  the  follow- 
ing worcls  concerning  the  plaintiff  and  the  said  action,  and  con- 
cerning the  evidence  given  by  the  said  plaintiff  upon  the  said 
trial  as  such  witness;  that  is  to  say:  "He  [meaning  the  plaintiff] 
zvas  forszvorn  on  the  trial  [meaning  the  said  trial],  and  that  he, 
the  said  plaintiff,  in  giving  his  evidence  as  stich  zvitness  on  said 
trial  had  committed  willful  and  corrupt  perjury." 

3.  That  said  publication  was  and  is  false  and  defamatory. 

4.  That  by  reason  of  said  false  and  defamatory  publication 
the  plaintiff  hath  been  damaged  in  the  sum  of  $2,/§o. 


No.      948. — Complaint — Libel — Foreign     Language,     Words 

Spoken  in. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  tzventy-fourth  day  of  July,  igo6,  at  P.,  the  de- 
fendant in  the  presence  and  hearing  of  divers  persons  who  un- 
derstood the  German  language,  spoke  concerning  the  plaintiff  the 
following  words  in  the  said  German  language  \here  set  forth  the 
zvords  in  the  German  or  foreign  language^^  ;  and  which  said  words 
signified,  and  were  understood  to  mean  in  the  English  language 
[here  set  forth  a  correct  translation  of  the  zvords  in  English]  ; 
and  the  said  German  words  were  so  understood  by  the  said  per- 
sons in  whose  presence  and  hearing  they  were  spoken. 

2.  That  the  defendant  meant  thereby   [set  forth  innuendo], 

3.  That  the  said  publication  was  false  and  defamatory. 

4.  That  in  consequence   [state  special  damage]. 

5.  That  by  reason  of  the  speaking  and  publication  of  the  said 
false  and  defamatory  words  the  plaintiff  hath  been  injured  in 
his  reputation,  to  his  damage  $2,pQ0.  [If  special  injury  as  to 
business  is  alleged,  add,  after  the  word  "reputation,"  the  words 
"and  business."! 

No.  949. — Complaint — Libel,  Words  not  Libelous, 

[Title  of  Court  and  Cause.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  plaintiff  is,  and  was,  on  and  before  the  fo-urteenth 
day  of  July,  ipo6,  a  merchant  doing  business  in  the  city  of  F. 


558  New  Book  of  Forms. 

2.  That  on  the  fourteenth  day  of  July,  ipo6,  at  P.,  the  defend- 
ant published  in  a  newspaper  called  the  Nezvs  [or  in  a  letter  ad- 
dressed to  £.  F.;  or  if  otherwise,  show  haiv  published],  the  fol- 
lowing words  concerning  the  plaintiff :  "A.  B.  of  this  city  has 
modestly  retired  to  foreign  lands.  It  is  said  that  creditors  to  the 
amount  of  $1,000  are  anxiously  seeking  his  address." 

3.  That  the  defendant  meant  thereby  that  the  plaintiff  had  ab- 
sconded to  avoid  his  creditors,  and  with  intent  to  defraud  them. 

4.  That  the  publication  was  false. 


No.  950. — Complaint — License,  Selling  Liquor  Without. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  tzventy-fourth  day  of  December,  igo6,  at  P., 
the  defendant  sold  to  one  A.  B.,  [or  to  divers  persons]  strong 
liquors  [or  spirituous  liquors  or  wines],  in  quantities  less  than  by 
the  bottle  [or  otherwise,  according  to  the  terms  of  the  ordinance 
or  statute]. 

2.  That  the  defendant  had  not  then  a  license  to  sell  liquors, 
as  required  by  the  act,  entitled  "An  act,"  etc.  [giving  title  of  act 
in  full],  passed  on  the  tifth  day  of  March,  ipo6. 

3.  That  thereby  the  defendant  became  and  is  indebted  to  the 
plaintiff  in  the  sum  and  penalty  of  $330,  for  said  act  of  selling 
[or  each  and  every  of  said  acts  of  selling],  whereby  this  action 
has  accrued  to  the  plaintiff,  according  to  the  provisions  of  said 
act,  for  the  said  sum  of  $330  [or  if  m^re  than  one  penalty  is 
claimed,  for  the  aggregate  amount  or  sum,  or  whatever  the 
amount  may  be]. 

No.  951. — Complaint — Marry,  Refusal  to. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  heretofore,  to  wit,  on  the  fifth  day  of  June,  IQ06,  at 
P.,  in  consideration  that  the  plaintiff,  being  then  sole  and  un- 
married, at  the  request  of  the  said  defendant,  had  then  promised 
the  said  defendant  to  marry  him,  the  said  defendant,  on  request, 
the  defendant  promised  to  marry  the  plaintiff  within  a  reason- 
able time  [or,  if  a  time  certain  zvas  agreed  upon,  state  the  time.] 

2.  That  the  plaintiff,  confiding  in  said  promise,  has  always 
since  remained,  and  continued,  and  still  is,  sole  and  unmarried, 
and  has  been  for  and  during  the  time  aforesaid,  and  now  is, 
ready  and  willing  to  marry  the  defendant 


Complaint — Pleadings,  559 

3,  That  the  defendant  refuses  to  marry  the  plaintiff,  although 
a  reasonable  time  elapsed  before  this  action  [or,  although  she,  on 
the  twenty-fifth  day  of  June,  1906,  requested  him  so  to  do],  to 
her  damage  in  the  sum  of  $400. 

No.  952. — Complaint  to  Recover  for  Material  Sold  Contractor 
and  Used  in  Doing  the  Work  Described  in  the  Com- 
plaint. 

[Title  of  Court  and  Cause.] 

The  plaintiff,  as  above  named,  complains  against  the  defend- 
ants above  named,  and  for  cause  of  action  alleges: 

1.  That  heretofore,  to  wit,  on  the  14th  day  of  September, 
J8pp,  at  San  Francisco,  in  the  State  of  California,  the  defendant, 
K.  A.,  entered  into  and  executed  a  formal  contract  in  writing  with 
the  United  States  of  America,  for  the  prosecution  and  comple- 
tion of  certain  public  work,  in  removing  from  San  Francisco  Bay, 
in  said  State  of  California,  three  rocks  knoivn  respectively  as 
Arch  Rock,  Shag  Rock  No.  One  and  Shag  Rock  No.  Two,  each 
to  a  depth  of  thirty  feet  below  mean  low  xvater  in  said  bay.  That 
in  accordance  with  the  requirements  of  said  contract  and  in  com- 
pliance with  the  requirements  of  the  statute  and  act  of  Congress 
of  said  United  States  in  that  behalf  provided,  said  defendant,  R. 
A.,  as  principal,  and  said  defendant,  the  S.  Company  of  New 
York,  as  surety,  at  same  time  and  place  with  the  execution  of 
said  contract  as  aforesaid,  executed  and  delivered  to  said  United 
States  their  penal  bond  in  the  sum  of  one  hundred  thousand  dol- 
lars, conditioned  that  said  defendant,  R.  A.,  should  promptly 
make  full  payment  to  all  persons  supplying  materials  in  the  pros- 
eaition  of  said  work  of  removing  said  rocks  from  said  bay,  as  in 
said  contract  provided.  A  copy  of  said  bond  {marked  Exhibit 
"A")  is  hereto  annexed  and  made  a  part  of  this  com.plaint. 

2.  That  thereafter  said  defendant,  R.  A.,  entered  upon,  and  in 
May,  JQO^,  completed  the  said  public  work  so  requircxl  by  said 
contract  as  aforesaid,  and  received  from  said  United  States  pay- 
ment therefor  as  by  said  contract  provided,  namely,  the  sum  of 
txvo  hundred  and  fifty-three  thousand  dollars.  During  the  course 
of  said  work  of  removing  said  rocks,  as  in  said  contract  pro- 
vided, the  said  JV.  IV.  M.  &  Company,  in  accordance  with  a  con- 
tract to  that  effect  then  and  there  made  with  said  R.  A.,  supplied 
him  from  time  to  time,  and  in  such  parcels  as  were  by  him  re- 
quired, during  the  prosecution  of  said  work,  with  materials  for, 
and  by  him  used  in  the  prosecution  of  said  work.  Said  m-atcrials 
consisted  of  iron  pipe  casings,  and  zcere  then  and  there  used  for 
and  in  connection  with  the  explosives  required  in  blasting  and 
shattering  said  rocks  so  to  be.  and  xvhich  were  by  said  R.  A.  re- 
moved as  required  by  said  contract. 


560  New  Book  of  Forms. 

The  value,  and  under  the  temis  of  said  contract  by  and  be- 
tween said  A.  and  said  W.  IV.  M  &  Company  for  supplying  said 
materials  for  said  public  work  the  price,  of  said  materials  so 
supplied  to  him  and  used  in  said  public  work  as  aforesaid  was  the 
sum  of  five  thousand  eight  hundred  and  eighty-four  and  ii-ioo 
dollars,  and  by  the  terms  of  last  said  contract  was  to  be  paid  by 
said  R.  A.  to  said  VV.  IV.  M.  &  Company,  in  installments  corre- 
sponding with  the  said  agreed  price  and  value  of  each  parcel  of 
said  materials  so  supplied  him  as  aforesaid  within  sixty  days  af- 
ter each  parcel  thereof  had  been  so  supplied,  and  if  not  so  paid 
to  bear  interest  at  the  rate  of  seven  per  cent  per  annum.  All  of 
said  materials  were  so  supplied  by  said  W.  W.  M.  &  Company  to 
sai^  R.  A.  for  said  work  as  aforesaid  in  parcels  as  aforesaid  be- 
tween February  16,  IQOO,  and  January  ^i,  IQ02. 

Said  R.  A.  paid  to  said  W.  W.  M.  &  Company  on  account  of 
said  materials  so  supplied  and  used  as  aforesaid  and  the  price  and 
value  thereof  as  aforesaid,  the  following  stated  sums  at  the  dates 
stated,  namely :  On  August  p,  igoo,  the  sum  of  Hve  hundred  dol- 
lars; on  August  20,  1902,  the  sum  of  Hve  hundred  dollars,  and  on 
November  5,  1902,  the  sum  of  three  hundred  and  twelve  dollars. 
Said  sums  when  received  were  by  said  IV.  IV.  M.  &  Company 
credited  to  said  A.  on  said  account  and  applied  in  payment  of  the 
price  of  the  parcel  of  said  materials  earliest  supplied  to  said  A. 
as  aforesaid,  and  as  so  applied  paid  for  all  parcels  of  said  ma- 
terials so  supplied  to  said  A.  by  said  W.  W.  M.  &  Company  prior 
to  December  i,  igoo.  No  other  payment  of  or  for  said  materials 
so  by  said  W.  W.  M.  &  Company  supplied  to  and  used  by  said  R. 
A.    was  ever  made. 

On  October  ^,  IQO^,  there  remained  unpaid  of  the  price  and 
value  of  said  materials  so  by  said  JV.  W.  M.  &  Company  supplied 
to  and  used  by  said  /?.  A.  in  said  public  work  as  aforesaid  the  sum 
of  four  thousand  five  hundred  and  seventy-two  and  ii-ioo  dol- 
lars, besides  interest  thereon  at  the  rate  of  seven  per  cent  per  an- 
num from  the  time  said  money  became  due,  and  on  that  day  at 
said  San  Francisco  said  W.  W.  M.  &  Company  rendered  and 
stated  to  said  A.  an  account  of  said  materials  so  supplied  as  afore- 
said at  the  price  aforesaid  and  yet  unpaid  and  due  thereon, 
namely,  the  sum  of  four  thousand  five  hundred  and  seventy-two 
and  II-IOO  dollars,  together  with  interest  thereon  at  the  rate 
aforesaid,  amounting  at  that  date  to  the  sum  of  eight  hundred  ana 
ninety-eight  and  8^-100  dollars,  which  account  when  so  rendered 
and  stated  to  him  as  aforesaid,  said  R.  A.  then  and  there  accepted 
and  agreed  to,  and  in  writing  promised  to  pay  to  said  W.  IV.  M. 
&  Company  in  one  day  thereafter  the  said  amount  unpaid  and 
due  thereon,  with  interest  as  aforesaid,  namely,  the  total  sum  of 
five  thousand  four  hundred  and  seventy  and  g6-ioo  dollars.  Said 
sum  has  not  nor  has  any  part  thereof  nor  of  the  interest  therec«i 
been  paid. 


Complaint — Pi^eadings.  561 

3.  Tliat  said  R.  A.  has  not  promptly  or  otherwise  made  full 
payment  nor  any  payment  save  as  aforesaid  to  said  W.  W.  M.  & 
Company  for  the  materials  supplied  by  it  to  said  A.  for  use,  and 
which  were  actually  by  him  used  in  the  prosecution  of  said  ])uljlic 
work  so  done  under  and  as  required  by  and  provided  in  the  con- 
tract by  and  between  the  United  States  of  America  and  said  A. 
first  hereinbefore  mentioned. 

4.  That  said  work  of  removing  said  rocks  from  said  bay  of 
San  Francisco,  as  in  said  contract  therefor  provided,  was  and  is 
public  work  of  the  United  States,  and  was  done  under  the  direc- 
tion of  the  War  Department  of  said  United  States. 

Heretofore,  to  wit,  on  July,  1904,  said  IV.  W.  M.  &  Company 
furnished  to  the  said  War  Department  an  affidavit  that,  and  show- 
mg  that  materials  for,  and  used  in  the  prosecution  of  said  public 
work  in  removing  said  rocks  from  said  bay,  as  provided  in  said 
contract  as  aforesaid,  had  been  supplied  to  said  R.  A.  by  said  W. 
W.  M.  &  Company,  and  that  payment  therefor  had  not  been  made 
and  at  the  same  time  applied  to  said  War  Department  to  be  fur- 
nished with  a  certified  copy  of  the  said  contract  and  bond  for  the 
purpose  of  bringing  suit  thereon  in  the  name  of  the  United  States 
for  the  use  and  benefit  of  said  W.  W.  M.  &  Company  against  the 
defendants  herein.  Said  Department  received  said  affidavit  and 
application  and  thereafter,  to  wit,  on  September  i,  IQ04,  furnished 
said  W.  W.  M.  &  Company  with  a  certified  copy  of  said  con- 
tract and  bond  for  the  purposes  aforesaid. 

5.  That  said  W.  W.  M.  &  Company  is,  and  at  all  times  here- 
in mentioned  was,  a  corporation  organized  and  existing  under 
the. laws  of  the  State  of  California,  engaged,  and  by  its  charter 
authorized  to  be  engaged  in  business  as  hardware  merchants. 

6.  The  defendant,  the  S.  Company  of  New  York  is,  and  at 
all  times  herein  mentioned  was,  a  corporation  organized  and  ex- 
isting under  the  laws  of  the  State  of  New  York,  with  a  branch 
office  in,  and  a  resident  vice-president,  resident  assistant  secretary 
and  resident  manager  in,  and  permanently  residing  in  the  city 
and  county  of  San  Francisco,  State  of  California.  During  all  of 
said  time  last  said  corporation  was  engaged  in,  and  by  law  was 
authorized  to  engage  in  the  business  of  corporation  surety  on 
bonds  required  by  law  or  contract  within  the  State  of  California 
by  license  of  said  State,  and  had  designated  a  person  residing  and 
who  now  resides  in  said  city  and  county  of  Sati  Francisco,  upon 
whom  process  in  civil  actions  against  said  corporation  may  be 
served,  as  the  representative  of  said  corporation. 

The  defendant,  R.  A.  is  a  resident  of  the  northern  district  of 
California. 

Wherefore  plaintiff  demands  judgment  {for  the  use  and  bene- 
fit of  said  W.  W.  M.  &  Company)  against  said  defendant.  R.  .1. 
and  the  -1.  .9.  Cnmtany  of  Neiu  York,  jointly  and  severally,  for 
New  Forms — 30 


562  New  Book  of  Forms. 

the  ag-gregate  sum  of  ^ve  thousand  four  hundred  and  seventy-six 
and  g6-ioo  dollars,  together  with  interest  thereon  at  the  rate  of 
seven  per  cent  per  annum  from  October  2^  190^,  and    for   the 
costs  of  this  action. 
Verified. 

NOTE. — Under  the  circumstances  stated  in  the  complaint,  one  who 
furnishes  labor  or  material  to  a  contractor  under  contract  with  the 
United  States  to  do  work  of  a  public  nature  may,  in  the  name  of  the 
United  States,  bring  action  in  the  United  States  courts  against  the  con- 
tractor and  the  sureties  on  his  bond.  Such  a  bond  is  in  this  book 
under  the  head  "Bonds."  A  notice  to  defend  the  action  by  the  sure- 
ties to  their  guarantors  will  be  found  under  "Notice." 

The  suit  in  said  proceeding  was  entitled  "The  United  States  of 
America,  in  the  Eelation  of  and  for  the  Use  and  Benefit  of  W.  W. 
Montague  and  Company,  Plaintiff,  vs.  Rudolf  Axman  and  the  American 
Surety  Company  of  New  York,   Defendants." 

It  is  necessary,  under  the  laws  of  the  United  States,  for  the  person 
furnishing  labor  and  materials  to  apply  to  the  department  under  the 
direction  of  which  said  work  was  done,  and  furnish  it  with  an  affidavit 
that  the  labor  or  materials  have  been  supplied  by  him  or  them.  Then 
(as  evidence,  presumably,  that  the  department  approves  of  the  con- 
templated action),  it  will  send  to  the  applicant  a  certified  copy  of  the 
contract  with  the  government  and  a  copy  of  the  contractor's  bond, 
and  the  person  making  the  application  will  then  have  a  right  of  action 
and  the  name  of  the  United  States  for  his  benefit  against  the  contractor 
and  his  sureties,  which  he  may  prosecute  to  final  judgment  and  execu- 
tion: Act  of  Congress  of  Aug.  13,  1894,  28  Stats.  278. 

This  action  is  exclusively  an  action  upon  the  bond,  and  maintainable 
only  as  such  by  virtue  of  the  statute  providing  for  such  a  bond,  and 
giving  an  action  upon  it  to  the  prosecutor:  Mullins  v.  United  States, 
109  Fed.  817,  818.  The  American  Surety  Company  of  New  York  fought 
this  action  to  a  finish,  making  every  possible  defense  their  counsel's 
ingenuity  could  invent. 

No.  953. — Complaint — Mechanic's  Lien.* 
[Title  of  Court  and  Cause.] 

Comes  now  the  plaintiff  above  named  and  for  cause  of  action 
complains  of  the  defendants  [naming  them  all],  and  for  cause  of 
action  alleges  the  following  facts : 

I.  This  plaintiff,  the  said  G.  P.  Company,  was  at  all  the  times 
herein  mentioned,  and  now  is,  a  corporation,  organized  and  doing 


*This  form  of  complaint  is  unlike  the  published  blanks  in  many 
respects.  It  tells  its  story  in  its  own  simple  way.  It  was  three  times 
before  the  supreme  court  of  California  just  as  it  appears  in  this  book. 
It  was  held  to  be  good  in  every  instance,  and  the  plaintiff  finally  pre- 
vailed. It  can  be  varied  to  meet  every  case.  The  lien  in  the  case  filed 
■with  the  county  recorder  will  be  found  under  the  head  "Liens,"  and 
the  contracts  in  the  case  under  that  head.  It  is  darwn  to  fit  Cal.  C.  C. 
P.,  sees.  1159-1175.  See,  also,  78  Cal.  19.3,  20  Pac.  419,  88  Cal.  220,  22 
Am.  St.  Eep.  298,  26  Pac.  84,  97  Id.  264,  32  Pac.  172,  where  the  ease  is 
reported. 


CoMPivAiNT — Pleadings.  5G3 

business  under  the  laws  of  California,  and  one  of  the  purposes 
for  which  it  was  organized  was  and  is  the  manufacture  and  sale 
of  explosk'cs  and  other  articles  used  in  blasting. 

II.  The  defendant,  the  said  S.  D.  F.  Company,  was  at  all  said 
times,  and  now  is,  a  corporation,  organized  and  doing  business 
under  the  laws  of  California,  and  one  of  the  purposes  for  which  it 
was  formed  was  and  is  the  construction  of  a  flume  structure, 
ditch,  and  timnel  from  its  diverting  dam,  owned  by  it  on  the  San 
Diego  river,  in  San  Diego  county,  California,  to  its  [description]. 

III.  The  plaintiff  is  ignorant  of  the  names  of  the  defendants, 
/.  D.,  R.  D.,  S.  B.,  and  K.  C,  and  has  therefore  sued  them  by 
the  foregoing  names  which  are  fictitious,  but  asks  when  their  true 
names  are  discovered  that  this  complaint  may  be  amended  by  in- 
serting their  true  names. 

IV.  Plaintiff  alleges,  on  its  information  and  belief,  that  on  and 
prior  to  the  thirtieth  day  of  March,  1906,  the  said  S.  D.  F.  Com- 
pany, ivas  and  thence  hitherto  has  been,  and  still  is,  the  owner 
of  the  aforesaid  diverting  dam  on  said  San  Diego  river.  [De- 
scription.] 

V.  On  the  thirtieth  day  of  March,  1906,  the  said  S.  D.  F.  Com- 
pany, defendant,  as  such  owner  aforesaid,  entered  into  a  contract 
in  writing  with  defendant,  J.  }.,  as  its  contractor,  which  contract 
was  subscribed  by  said  parties  thereto  by  the  terms  of  which, 
among  other  things,  the  contractor  /.  /.,  agreed  to  do  and  per- 
form certain  work,  in  accordance  with  the  plans  and  specifications 
to  said  contract  attached  and  made  a  part  thereof  for  the  said  S. 
D.  F.  Company  along  its  said  flume  line  front  its  said  diverting 
dam  on  said  San  Diego  river  to  its  said  city  reservoir,  near  San 
Diego.  Said  work  to  consist  as  follozvs: 

FIRST GRADING. 

[Description.] 

SECOND — TUNNELS. 

[Description.] 

And  by  the  terms  of  said  contract  the  said  /.  /.  further  agreed 
to  furnish  and  provide  at  his  own  cost  all  tools  and  implements 
of  every  kind  and  description,  used  in  and  about  said  work,  and 
also  all  material  used  and  employed  in  its  construction,  other  than 
lumber  for  tunnel  lining,  and  also  all  lime  and  cement  required 
to  be  used  in  accordance  with  said  specifications,  which  said  lum- 
ber, lime,  and  cement  said  S.  D.  F.  Company  agreed  to  furnish 
and  deliver  free  of  cost  to  said  /.  /.,  and  where  the  same  could, 
without  unusual  delay,  be  delivered  by  said  S.  D.  F.  Company; 
and  the  said  J.  J.  agreed  to  furnish,  at  his  ozim  cost,  ample  and 
suitable  protection  from  damage  by  zveather  for  all  lime  and  ce- 
ment delivered  as  aforesaid  to  him,  and  to  begin  work  under  said 
contraet  within  ten  days  from  the  date  thereof,  to  wit;  March  50, 
1906,  and  to  complete  the  same  on  or  before  November  i,  1906. 


564  New  Book  of  Forms. 

The  said  S.  D.  F.  Company,  by  the  terms  of  said  contract, 
agrees,  among  other  things,  to  pay  said  /.  /.  for  said  work  as 
follows,  to  wit,  etc. 

Pa>Tncnts  to  be  made  as  follows:  Fifty  (50)  per  cent  cash  on 
estunates,  to  be  made  monthly,  on  or  about  the  first  of  each  and 
every  month,  until  the  completion  of  said  work,  and  twenty -five 
(^5)  P^^  ^^^  *"  ^''■^  mortgage  six  (6)  per  cent  twenty-year  bonds 
of  said  S.  D.  F.  Company;  remaining  tzventy-five  (2^)  per  cent 
to  be  paid  in  said  above-mentioned  first  mortgage  bonds;  but  the 
same  to  be  held  by  S.  D.  F.  Company  until  the  full  completion  of 
the  contract,  and  to  bear  no  interest  until  delivered  to  said  J.  J., 
said  bonds  to  be  taken  by  him  at  ninety-five  (pj)  cents  on  the 
dollar,  and  in  no  event  to  bear  interest  until  delivery  thereof. 
Thai  afterwards,  to  wit,  on  the  sixth  day  of  June,  ipo6,  the  parties 
to  the  foregoing  agreement,  by  a  memorandum  attached  thereto 
and  subscribed  by  said  parties,  agreed  that  the  said  S.  D.  F.  Com- 
pany should  pay  the  said  J.  J.,  for  all  the  work  theretofore  done 
by  him  for  said  company  under  the  foregoing  contract  of  March 
JO,  ipo6,  according  to  the  terms  thereof,  and  that  said  J.  J. 
should  accept  the  same.  That  thereafter,  to  wit,  on  the  said  sixth 
day  of  June,  ipo6,  the  said  contract  of  March  30,  igo6,  together 
•with  the  memorandum  aforesaid  attached  thereto,  was  by  the 
parties  thereto  filed  in  the  office  of  the  county  recorder  of  said 
county  of  San  Diego  aforesaid. 

VI.  Plaintiff  alleges,  on  its  information  and  belief,  that  the 
said  /.  /.,  under  the  said  contract  of  March  30,  1906,  commenced 
the  work  therein  described,  and  by  him  agreed  to  be  done  on  the 
ninth  day  of  April,  ipo6,  and  thereafter  continued  in  the  perform- 
ance of  said  work  until  the  tenth  day  of  August,  igo6,  and  up  to 
said  last-named  day,  duly  performed  all  the  conditions  of  said 
contract  on  his  part,  and  had  done  work  and  furnished  materials 
under  said  contract  and  in  said  constructions  of  the  aggregate 
value,  according  to  the  prices  aforesaid,  of  over  forty  thousand 
dollars,  and  that  there  remains  unpaid  on  account  thereof  the 
sum  of  forty  thousand  dollars,  no  part  of  which  has  been  paid 
either  in  cash  or  bonds. 

VII.  Full  and  true  copies  of  said  two  contracts  aforesaid  and 
of  the  specifications  thereto  attached  and  therein  referred  to,  are 
hereto  annexed,  contained  in  the  notice  of  lien  marked  "Exhibit 
A."  and  are  in  said  lien  marked  "Exhibit  A,"  and  they  are  made 
a  part  of  this  complaint. 

VIII.  Plaintiff  alleges,  on  his  information  and  belief,  that  on 
or  about  the  tenth  day  of  August,  1906,  the  said  7.  /.  stopped  all 
zvork,  and  surrendered  said  contract  and  all  his  rights  thereunder 
to  said  S.  D.  F.  Company,  and  the  said  company  accepted  the 
surrender  of  said  contract,  and  took  and  accepted  possession  of 
said  structure,  and  accepted  the  said  structure,    flumes,    ditches. 


Complaint — Pleadings.  565 

and  hinnels,  and  has  ever  since  continued  in  the  occupation  and 
use  of  the  same  and  of  said  works  accepted  as  aforesaid. 

On  the  ninth  day  of  April,  ipo6,  this  plaintiff  entered  into  a 
written  contract  with  the  said  /.  /.,  as  such  contractor  aforesaid, 
by  the  terms  of  which,  among  other  things,  this  plaintiff  agreed 
to  sell  and  deliver  to  said  /.  J.,  at  its  agency,  in  the  city  of  San 
Diego,  all  the  powder,  caps,  and  fuse*  needed  in  all  the  work 
to  be  done  by  him  under  his  contract  or  contracts,  aforesaid,  for 
said  blasting  and  turimling  for  the  said  S.  D.  f.  Companv,  and  at 
the  prices,  less  ten  per  cent  on  Giant  Powder,  as  follows,  to  wit: 

And  said  plaintiff  further,  by  the  terms  of  said  contract,  agreed 
to  furnish  such  pozvder,  caps,  and  fuse  in  such  quantities  and  at 
such  times  as  said  J.  J.  might  require,  and  to  prepay  the  freight 
thereon,  xvhich  freight  should  be  charged  to  his  account,  and  be 
paid  by  him  upon  monthly  settlements.  And  by  the  terms  of  said 
contract  the  said  /.  /.  agreed  to  pay  the  prices  hereinbefore  stated, 
and  at  the  times  and  in  the  manner  following,  to  wit: 

At  the  expiration  of  ninety  days  from  and  after  the  fifteenth 
day  of  April,  IQ06,  for  all  powder,  caps,  and  fuse  used  up  to  that 
time,  one-third  cash;  and  deposit  with  the  agent  of  said  plamtiif 
at  the  city  of  San  Diego,  S.  D.  F.  Company's  bonds  owned  by 
him,  for  the  remaining  unpaid  ttvo-thirds  purchase  price  due  at 
eighty-five  cents  on  the  dollar,  and  thereafter  to  pay  monthly  on 
the  fifteenth  day  of  each  and  every  month  during  the  continuance 
of  the  contract,  for  all  further  supplies  of  powder  used  by  him 
during  that  month  in  the  same  ma)mcr  and  on  the  same  terms,  to 
wit : 

One-third  cash  and  tzvo-thirds  in  bonds  of  said  S.  D.  F.  Com- 
pany, and  on  completion  of  said  contract  he  was  to  redeem  all 
such  bonds  oj  may  have  been  deposited  by  him  as  security  for  pay- 
ment, by  paying  to  the  agent  of  plaintiff,  at  the  city  of  San  Diego, 
cash  for  the  full  amount  of  such  payments,  he  to  retain  all  in- 
terest that  might  accrue  on  said  bonds  so  placed. 

On  the  same  date,  to  wit,  April  p,  1906,  this  plaintiff  and  said 
J.  /.,  entered  into  a  supplemental  ivritten  contract,  by  the  terms 
of  which  it  was  mutually  agreed  that  the  freight  on  Giant  and 
Judson  Pozvder  should  be  paid  by  plaintiff  at  the  loivest  rates  pos- 
sible to  be  obtained,  and  should  be  charged  in  addition  to  price 
of  powders  named  in  the  foregoing  contract  bettveen  the  parties, 
and  the  plaintiff  to  allow  an  addition-al  ten  per  cent  discount  from 
the  prices  and  discount  named  in  said  foregoing  contract  on  Giant 
Powder,  but  Judson  Powder  to  be  paid  as  therein  agreed  at  six 
and  one-lvalf  cents  per  pound,  with  freight  added,  and  fuse  to  be 


•In  this  ease  it  was  contended  hy  defendant  that  powder,  c^jps  and 
fuse  were  not  materials  used  in  the  structure  described  in  the  complaint; 
but  the  supreme  eoort,  on  appeal,  held  against  the  defendant:  See  7S 
Cal.  193. 


566  New  Book  of  Forms. 

casli;  that  is,  fuse  to  be  paid  for  on  the  fifteenth  of  each  month. 
Full  and  true  copies  of  said  two  contracts  are  contained  in  the 
notice  of  lien  hereto  annexed,  marked  "Exhibit  A,"  and  are  in 
SCI  id  lien  marked  "Exhibit  B,"  and  they  are  made  a  part  of  this 
complaint. 

X.  Under  the  foregoing  contract  this  plaintiff  at  various  dates 
between  said  ninth  day  of  April,  ipo6,  and  the  tenth  day  of  Au- 
gust,  Jpo6,  sold,  furnished,  and  delivered  unto  said  /.  /.,  at  his 
agency  in  said  city  of  San  Diego,  to  be  used,  and  actually  used, 
in  said  work  of  blasting  and  excavating  and  tunneling,  large 
quantities  of  powder,  caps,  and  fuse,  to  wit,  etc. 

That  the  foregoing  materials  were  furnished  in  such  quantities 
and  at  such  times  as  the  said  /.  /.  required,  and  the  plaintiff  pre- 
I)aid  the  freight  thereon,  which  amounted  to  the  sum  of  $418.62 ; 
that  the  aggregate  value,  including  freight  of  said  materials  at 
the  rates  and  discount  provided  for  in  said  contracts,  was  the  sum 
of  $j,22i.^y,  which  sum  was  the  fair  value  of  said  materials  at 
said  place  of  delivery. 

The  plaintiff  duly  performed  all  the  conditions  of  said  contracts 
on  its  part.  Tliat  no  part  of  said  sum  has  been  paid,  and  no  part 
of  the  freight  has  been  prepaid,  but  the  whole  of  said  sum  of 
$j,22i.^j,  is  unpaid,  and  there  are  no  credits  or  offsets  thereto. 
That  /.  /.,  although  often  requested,  never  did  deposit  with  the 
plaintiff,  or  its  agent  at  San  Diego,  or  at  all,  any  bonds  whatso- 
ever of  said  5.  D.  F.  Company,  and  all  said  sums  of  money  are 
due  and  unpaid. 

XL  On  the  fifth  day  of  September,  1906,  the  plaintiff  filed  for 
lecord  with  the  county  recorder  of  the  said  county  of  San  Diego 
its  claim  and  notice  of  lien  in  writing,  containing  a  true  state- 
ment of  its  demand  hereinbefore  set  forth  for  said  materials,  af- 
ter deducting  all  just  credits  and  offsets ;  also  setting  forth  in  said 
lien  the  name  of  said  5.  D.  F.  Company  as  the  owner  of  the  prop- 
erty hereinbefore  described,  and  the  name  of  said  /.  /.  as  the  per- 
son to  whom  said  materials  were  furnished  and  by  whom  plaintiff 
was  employed  for  that  purpose ;  also  setting  forth  in  said  lien  the 
terms,  time  given,  and  conditions  of  plaintiff's  contract  with  said 
/.  /.,  which,  as  therein  set  forth  were  the  same  as  those  hereinbe- 
fore set  forth ;  also  setting  forth  in  said  lien  a  description  of  the 
property  to  be  charged  with  the  lien  sufficient  for  identification, 
which  description  therein  set  forth  was  the  same  as  that  here- 
inbefore set  forth,  and  which  said  claim  was  verified  by  the  oath 
of  L.  B.  C,  the  secretary  of  the  plaintiff  corporation,  in  writing, 
attached  to  said  lien  and  filed  therewith,  which  said  lien  and  oath 
were  recorded  by  said  County  Recorder,  in  a  book  kept  by  him 
for  that  purpose,  to  wit,  in  book  No.  2  of  Mechanics'  Liens,  page 
218  et  seq.,  and  a  copy  of  which  lien  (together  zvith  the  exhibits 
therein  referred  to)  is  hereto  annexed  and  marked  "Exhibit  A," 
and  made  a  part  of  this  complaint. 


Complaint — Pleadings.  567 

Xn.  That  the  whole  of  the  property  hereinbefore  described, 
incUidinc:  the  said  diverting  dam,  culverts,  flumes,  ditches,  tun- 
nels, approaches,  reservoirs,  and  rights  of  way  for  said  iifty  miles, 
is  required  for  the  convenient  use  and  occupation  of  said  con- 
struction and  structure. 

XIII.  Plaintiif  alleges,  upon  its  information  and  belief,  that 
the  defendants,  /.  D.,  R.  R.,  and  S.  B.,  have  or  claim  to  have, 
some  estate,  right,  title,  or  lien  upon  said  property;  but  plaintiff 
alleges  that  such  estate,  right,  title,  and  lien  are  subsequent,  and 
subject  to  the  lien  of  this  plaintiff  thereon. 

XIV.  Plaintiff  alleges,  upon  its  information  and  belief,  that 
$1,000  would  be  a  reasonable  fee  to  be  allowed  to  its  attorney  in 
this  court,  and  a  like  sum  on  appeal  to  the  supreme  court,  in  case 
of  appeal. 

Plaintiff  paid  eight  dollars  and  fifty  cents  for  recording  and  Hfty 
cents  for  verifying  said  lien,  no  part  of  which  has  been  repaid. 

Wherefore,  plaintiff  prays  judgment  against  the  defendants,  the 
S.  D.  F.  Company  and  J.  J.,  for  said  sum  of  $/,22i.j;,  together 
with  interest  thereon  from  August  10,  igo6,  and  cost  of  suit,  in- 
chulino-  a  reasonable  counsel  fee  and  tlie  amount  paid  for  verify- 
ing and  recording  said  lien. 

1  hat  said  judgment  for  said  amount  of  said  costs  declares  and 
adjudges  the  same  to  be  a  lien  upon  all  of  said  propertv  in  the 
complaint  described  and  that  said  litn  be  foreclosed.  TMt  the 
sheriff  of  said  San  Diego  county  be  directed  to  sell  said  property, 
as  required  by  the  law  and  practice  of  the  court,  and  out  of  the 
proceeds,  after  paying  his  costs,  commission,  and  expenses  of  sale, 
to  pay  to  plaintiff  or  its  attorney  the  amount  of  its  judgment 
aforesaid ;  that  by  said  judgment  it  be  provided  that  anv  of  the 
parties  to  this  suit,  or  their  agents,  may  bid  at  said  sale  and  be- 
come purchasers  thereat;  that  upon  production  of  the  sheriff's 
deed  the  purchaser  be  let  into  possession  of  the  propertv  pur- 
chased :  that  the  estate,  right,  title,  and  lien  of  all  and  each  of  the 
defendants,  and  all  persons  claiming  or  to  claim  under  them,  or 
either  of  them,  in  said  property,  or  any  part  thereof,  be  barred  or 
foreclosed. 

That  plaintiff  have  such  other  and  further  relief  as  may  seem 
proper,  together  with  costs  of  suit. 

No.    954. — Complaint — Mechanic's    Lien — Short    Form. 
[Title  of  Court  and  Cause.] 

Now  come  the  plaintiffs  above  named,  and,  complaining  of  the 
above-named  defendant,  allege : 

First.  That  heretofore,  to  wit,  on  the  first  day  of  January, 
IQ06,  J.  R.  and  H.  M.,  the  plaintiffs  above  named,  ivcrc  and  ci'cr 
since  have  been,  partners,  doing  business  laidcr  the  firm  name  of 
J.&D. 


568  New  Book  of  Forms. 

Second.  That  during  all  the  time  in  this  complaint  mentioned, 
defendant,  G.  S.,  was  the  owner  of  all  that  certain  land  situate  in 
the  cit\  and  county  of  San  Francisco,  State  of  California,  and 
bounded  and  described  as  follows,  to  wit :  [Description.] 

Third.  That  on  the  thirtieth  day  of  November,  ipo6,  plaintiflFs 
snd  defendant,  A.,  agreed  together,  as  follows:  Said  defendant 
uas  engaged  in  erecting  a  dwelling-house  upon  all  the  land  above 
described,  and,  on  said  day,  he  employed  plaintiffs  to  furnish  all 
the  stairs  in  said  building,  arid  plaintiffs  agreed  to  furnish  the 
same  to  be  used  in  said  building,  and  the  said  defendant  agreed  to 
pav  them  therefor  the  sum  of  six  hundred  and  forty-five  dollars 
in  gold  coin. 

Fourth.  That  in  pursuance  of  said  agreement  the  said  plain- 
tiffs, on  the  same  day,  furnished  the  said  stairs  to  be  used,  and 
they  were  used,  in  the  construction  of  said  building,  according  to 
said  agreement. 

Fifth.  That  said  land  was  at  the  time  of  commencing  work  on 
said  building  owned  by  the  said  defendant,  A. 

Sixth.  That  plaintiffs,  under  the  terms  of  their  agreement 
with  the  said  defendant.  A.,  agreed  to  furnish  the  said  stairs,  and 
the  said  defendant.  A.,  agreed  to  pay  plaintiffs  six  hundred  and 
forty-live  dollars  in  gold  coin,  for  the  same,  on  the  thirtieth  day 
of  December,  1906,  but  the  same  has  not  been  paid,  nor  any  part 
thereof,  and  the  same  was  and  now  is  so  due,  at  the  time  of  the 
filing  of  the  lien  hereinafter  mentioned. 

Seventh.  That  the  said  land  upon  which  the  said  building  is 
constructed,  together  with  twenty  feet  of  said  land  on  each  side, 
and  ten  feet  at  the  south  end  of  said  building,  is  necessary  for  the 
convenient  use  of  said  building. 

Eighth.  That  on  a  certain  day,  to  wit,  the  third  day  of  Janu- 
ary, ipo6,  said  plaintiffs  duly  filed  and  recorded  with  the  county 
recorder  of  the  city  and  county  of  San  Francisco,  being  the  coun- 
ty in  which  such  property  is  situate,  their  claim  duly  verified  by 
the  oath  of  /.  R.,  containing  a  statement  of  plaintiffs'  demand, 
after  deducting  all  just  credits  and  offsets,  with  the  name  of  the 
owner,  and  also  the  name  of  the  person  who  employed  plaintiffs 
3S  aforesaid,  with  a  statement  of  the  terms,  time  given,  and  con- 
ditions of  the  contract,  and  also  a  description  of  the  property 
sought  to  be  charged  with  the  lien  sufficient  for  identification. 

Ninth.  That  D.  F.,  The  C.  S.  and  L.  Society,  and  S.  H.,  have 
cr  claim  some  interest  in  said  premises;  but  the  same  is  subse- 
quent to  plaintiffs'. 

Tenth.  That  plaintiffs  have  paid  ten  dollars  as  a  necessary 
charge  and  expense  in  preparing  and  recording  said  lien,  viz. :  five 
dollars  for  recording  and  Hve  dollars  for  preparing  the  same. 

Eleventh.     That  the  sum  of  one  hundred  dollars  is  a  reasonable 


COMPI^AINT Pl^F.ADINCS.  569 

snm   for  attorney's  fee  in  prosecuting  this   suit  in  the  superior 
court. 

1.  Wherefore,  plaintiffs  pray  for  judgment  against  G.  S.  A. 
for  the  sum  of  six  hundred  and  foriy-Hve  dollars,  and  that  the 
same  be  adjudged  a  lien  against  the  lot  of  land  above  described. 

2.  That  said  premises,  building,  and  appurtenances  above  de- 
scribed, to  the  extent  of  the  interest  of  said  defendant,  G.  S.  A., 
tlierein,  be  adjudged  and  decreed  to  be  sold  by  the  sheriff  of  said 
city  and  county,  according  to  law  and  the  practice  of  this  court, 
and  that  the  proceeds  of  such  sale  be  applied  to  the  payment  of 
the  costs  of  these  proceedings  and  sale,  and  a  reasonable  attorney's 
fee  of  oiie  hundred  dollars,  and  said  plaintiffs'  claim,  amounting 
to  said  sum  of  six  hundred  and  forty-five  dollars,  and  also  for  the 
claim  of  any  other  lienholder  if  any  such  there  be,  on  said  prop- 
erty, who  shall  come  in  and  be  duly  made  parties  to  this  action. 

3.  That  plaintiffs  be  allowed  a  reasonable  sum  for  attorney's 
fee  by  said  court,  and  his  costs,  in  preparing  and  recording  said 
lien. 

4.  That  plaintiffs,  or  any  otlier  parties  to  this  suit,  may  become 
purchasers  at  such  sale. 

5.  That  said  plaintiffs  may  have  such  other  and  further  order 
and  relief  in  the  premises  as  the  case  may  require  and  as  to  the 
court  may  seem  just. 


No.  955. — Complaint — Money  Count  Under. 

[Title  of  Court  and  Cause.] 

The  plaintiffs  complain,  and  allege: 

I.  That  at  the  times  hereinafter  mentioned  the  plaintiffs  were 
partners,  doing  business  at  the  city  and  county  of  San  Francisco, 
State  of  California,  under  the  firm  name  of  A.  B.  &  Company, 
and  the  defendants  were  partners,  doing  business  at  the  said  city 
and  county  of  San  Francisco,  under  the  firm  name  of  C.  D.  & 
Company. 

First — For  a  first  cause  of  action,  the  plaintiffs  allege: 

1.  That  on  the  sixth  day  of  July,  1906,  at  S.  F.,  at  the  request 
of  the  defendants,  the  plaintiffs  deposited  with  the  defendants  the 
sum  of  ^7,000,  gold  coin  of  the  United  States,  which  sum  the  de- 
fendants promised  to  pay  the  plaintiffs  on  demand. 

2.  That  on  the  fifteenth  day  of  July,  igo6,  at  S.  F.,  the  plain- 
tiff's demanded  payment  of  the  same  from  the  defendants,  but 
they  have  not  paid  the  same. 

Second — And  for  a  second  cause  of  action,  the  plaintiffs  allege : 


570  New  Book  of  Forms. 

1.  That  on  the  ninth  day  of  July,  Tgo6,  at  5*.  F.,  the  defend- 
ants received  $300  from  one  B.  P.,  to  be  naid  to  the  plaintiffs. 

2.  That  the  defendants  have  not  paid  the  same. 

Third — And  for  a  third  cause  of  action,  the  plaintiffs  allegfe: 

1.  That  on  the  tenth  day  of  July,  ipo6,  at  ^S*.  F.,  the  plaintiffs 
lent  to  the  defendants  $600. 

2.  That  the  defendants  have  not  paid  the  samt. 


No.  956. — Complaint — Money  Had  and  Received. 
[Title  of  Court  and  Cause.] 

IV.  J.  H.,  the  plaintiff  in  the  above-entitled  action,  complain- 
ing of  L.  T.  J.,  the  defendant  in  said  action,  alleges: 

1.  That  on  the  ninth  day  of  August,  igo6,  at  the  city  and 
county  of  San  Francisco,  State  of  California,  the  said  defendant 
received  from  the  said  plaintiff,  as  the  agent  of  said  plaintiff,  the 
sum  of  one  thousand  dollars,  to  the  use  of  said  plaintiff,  which  he 
agreed  to  pay  to  plaintiff  on  demand. 

2.  That  thereafter,  and  before  this  action  was  commenced,  the 
said  plaintiff  demanded  payment  thereof  from  the  said  defendant. 

3.  That  the  said  defendant  has  not  paid  the  said  sum,  nor  any 
part  thereof;  and  the  same  is  due. 

Wherefore,  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  said  sum  of  one  thousand  dollars,  interest  and 
costs  of  suit. 

No.  957. — Complaint — Money  Paid  to  Third  Party, 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges : 

1.  That  on  the  tzvelfth  day  of  January,  ipo6,  at  P.,  at  the  re- 
quest of  defendant,  plaintiff  paid  to  one  A.  B.  $i,§jo. 

2.  That  in  consideration  thereof,  defendant  promised  to  pay 
the  same  to  plaintiff. 

3.  That  on  the  fourth  day  of  May,  1006,  the  plaintiff  demand- 
ed payment  of  the  same  from  the  defendant,  but  he  has  not  paid 
the  same,  nor  any  part  thereof. 


No.    958. — Complaint — Money    Paid — Repayment. 

[Title  of  Court  and  Cause.] 

The  plaintiff  complains,  and  alleges: 

I.     That  on  or  about    the    eighteenth  day    of   January,    IQ06, 
judgment  was  rendered  against  this  plaintiff  in  the  superior  court 


Complaint — Pleadings.  571 

of  the  county  of  Sierra,  State  of  California,  in  an  action  wherein 
the  defendant  was  plaintiff,  and  this  plaintiff  was  defendant  for 
the  sum  of  $2,500. 

2,  That  on  the  twenty-fifth  day  of  March,  1^06,  at  Grass  Val- 
ley, the  plaintiff  paid  to  the  defendant  the  sum  of  $2,500,  in  sat- 
isfaction thereof. 

3.  That  afterward,  on  the  tenth  day  of  April,  igo6,  by  the 
judgment  of  the  supreme  court  of  said  State  of  California,  said 
first-mentioned  judg-ment  was  reversed ;  but  that  no  part  of  the 
said  sum  paid  in  satisfaction  thereof  has  been  repaid  to  this  plain- 
tiff. 


No.  959, — Complaint — Mortgage,  ChatteL 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges  : 

I.  That  on  the  first  day  of  January,  igo6,  at  the  city  of  Oak- 
land, county  of  Alameda,  the  said  defendant  made  and  executed 
his  certain  promissory  note  in  writing,  in  the  words  and  figures 
following,  to  wit:  [here  copy  note],  whereby  he  promised  to  pay 
plaintiff'  the  sum  of  tivo  thousand  dollars,  with  interest  at  the  time 
and  in  the  manner  therein  specified,  in  gold  coin  of  the  United 
States,  and  then  and  there  delivered  the  said  note  to  the  said 
plaintiff. 

II.  That  at  the  time  and  place  aforesaid,  in  order  to  secure 
the  payment  of  said  promissory  note,  the  said  defendant  executed 
and  delivered  to  the  plaintiff  his  certain  instrument  in  writing,  un- 
der seal,  known  as  a  chattel  mortgage,  a  copy  of  which  is  hereto 
annexed  as  a  part  of  this  complaint,  marked  "Exhibit  A,'''  which 
said  chattel  mortgage  was  made  in  good  faith,  for  the  purpose 
aforesaid,  without  intent  to  defraud  creditors  or  purchasers,  and 
was  verified,  acknowledged,  and  recorded,  pursuant  to  the  stat- 
ute in  such  case  made  and  provided. 

III.  That  the  property  mentioned  and  described  in  said  chattel 
mortgage  and  the  schedule  annexed  consisted  of  [here  describe 
property  and  where  situated]. 

IV.  That  no  proceedings  have  been  had  at  law,  or  otherwise, 
for  the  recovery  of  said  sum  and  interest,  or  any  part  thereof,  and 
the  same  is  still  wholly  owing  and  unpaid, — 

Wherefore,  the  plaintiff  prays  judgment : 

1.  That  the  defendant  be  foreclosed  of  all  interest,  lien,  and 
equity  of  redemption  m  said  mortgaged  property,  to  wit,  the  said 
goods  and  chattels. 

2.  That  the  same  be  sold,  and  that  the  proceeds  thereof  be 
applied  to  the  payments  of  the  costs  and  expenses  of  this  action 


572  New  Book  of  Forms. 

and  of  counsel  fees,  not  to  exceed  the  sum  of  $^50,  and  of  the 
amount  due  on  said  note  and  mortgage,  with  interest  thereon  up 
to  the  time  of  pa^mlent,  at  the  rate  of  sez'cn  per  cent  per  month. 

3.  Tifat  the  said  defendant  be  adjudged  to  pay  any  deficiency 
that  mav  remain  after  applying  all  said  money  as  aforesaid,  and 
for  such  other  and  further  Velief  as  to  this  court  may  seem  just 
in  the  premises. 

No.  960. — Complaint — Mortgage,  Land. 

[Title  of  Court  and  Cause.] 

The  H.  S.  and  L.  Society,  the  plaintiff  in  the  above-entitled 
action,  complaining  oi  A.  L.  and  M.  L.,  his  zuife,  the  defendants 
in  said  action,  alleges: 

That  said  plaintiff  is  now,  and  for  six  years  and  upzvard  last 
past  has  been,  a  corporation  duly  created  and  existing  under  and 
by  virtue  of  the  laws  of  the  State  of  California. 

'  That  on  a  certain  day,  to  wit,  the  tenth  day  of  March,  1906,  at 
the  city  and  county  of  San  Francisco,  in  the  State  of  California, 
the  said  defendant,  A.  L.,  made  his  certain  promissory  note  in 
writing,  bearing  date  on  that  day,  in  the  words  and  figures  fol- 
lowing, to  wit,  [insert  copy  of  note]  and  then  and  there  delivered 
the  same  to  said  plaintiff. 

That  the  said  defendants,  A.  L.  and  M.  L.,  his  wife,  to  secure 
the  payment  of  the  said  principal  sum  and  the  interest  thereon,  as 
mentioned  in  said  promissory  note,  according  to  the  tenor  there- 
of, did,  at  the  same  time  and  place,  execute  under  their  hands  and 
seals,  and  deliver  to  the  said  plaintiff,  a  certain  mortgage,  bear- 
ing date  on  the  said  tenth  of  March,  1906,  and  conditioned  for 
the  payment  of  the  sum  of  five  thousand  (5,000)  dollars,  gold 
coin  of  the  United  States,  and  interest  thereon  at  the  rate,  and  at 
the  time,  and  in  the  manner  specified  in  said  mortgage  and  the 
said  promissory  note,  and  according  to  the  conditions  thereof; 
which  said  mortgage  was  duly  acknowledged  and  certified,  so  as 
to  entitle  it  to  be  recorded ;  and  the  same  was  afterwards,  to  wit 
on  the  eleventh  day  of  March,  1906,  duly  recorded  in  the  office  of 
the  county  recorder  of  the  city  and  county  of  San  Francisco,  in 
Liber  416,  of  Mortgages,  page  274;  a  copy  of  which  said  mort- 
gage, with  the  inflorsements  thereon,  is  hereunto  annexed,  marked 
"Exhibit  A,"  and  made  a  part  of  this  complaint. 

That  ten  months  of  the  interest  on  said  principal  sum  mentioned 
in  said  promissory  note  and  in  the  said  mortgage  has  been  paid, 
and  is  indorsed  on  said  promissory  note;  and  $5,000,  United 
States  gold  coin,  the  principal  sum  mentioned  in  said  promissory 
note  and  mortgage,  together  with  interest  thereon  at  the  rate  of 
ten  per  cent  per  annum  from  the  tenth  day  of  January,  1906,  still 


COMPI^AINT — Pl^RADINGS.  573 

remains  due  and  unpaid  from  said  defendants,  A.  L.  and  M.  L., 
his  wife,  to  said  plaintiff. 

That  the  plaintiff  is  now  the  lawful  owner  and  holder  of  said 
promissory  note  and  said  mortgage. 

That  the  defendant,  J.  T.  J.,  has,  or  claims  to  have,  some  inter- 
est or  claim  upon  said  premises,  or  some  part  thereof,  as  pur- 
chaser, mortgagee,  judgment  creditor,  or  otherwise,  which  inter- 
est or  claim  is  subsequent  to  and  subject  to  the  lien  of  the  plain- 
tiff's mortgage. 

Th-at  said  plaintiff  Ms  paid  the  sum  of  $i/j  taxes  imposed  on 
said  mortgaged  premises  in  said  mortgage  particularly  described 
for  the  tiscal  year  18(^0-91,  which  were  a  prior  charge  on  said 
land  to  this  mortgage,  and  that  said  sum  of  $1/3,  so  paid  as  afore- 
said, according  to  the  covenants  and  stipidations  in  said  mortgage, 
bear  interest  at  the  rate  of  two  per  cent  per  month. 

Wherefore,  tlie  plaintiff  prays  judgment  against  the  said  de- 
fendant, A.  L.,  for  the  sum  of  $5,i/5,  United  States  gold  coin, 
with  interest  at  the  rate  of  ten  (10)  per  cent  per  annum  from  the 
tenth  day  of  January,  1903,  on  $3,000  thereof,  and  at  the  rate  of 
two  per  cent  per  month  on  $173  thereof,  from,  the  tenth  day  of 
December,  1904,  and  ffve  per  cent  on  the  amount  found  due  for 
attorney's  fee  provided  in  said  mortgage,  and  costs  of  suit;  that 
llie  usual  decree  may  be  made  for  the  sale  of  said  premises,  or  so 
much  as  may  be  necessary  to  pay  the  same,  with  costs,  by  the 
sheriff  of  the  said  city  and  county  [or  by  a  commissioner  ap- 
pointed by  the  court;  or,  as  stipulated],  according  to  law  and  the 
practice  of  this  court;  that  tlie  proceeds  of  said  sale  may  be  ap- 
plied in  payment  of  the  amount  due  to  the  plaintiff,  and  that  said 
defendants,  and  all  persons  claiming  under  them,  or  eitlier  of 
them,  subsequent  to  the  execution  of  said  mortgage  upon  said 
]irc;ni.-es,  eiiticr  as  purchasers,  encumbrancers,  or  otherwise,  may 
be  barred  and  foreclosed  of  all  right,  claim,  or  equity  of  redemp- 
tion ill  ihe  said  premises,  and  every  part  thereof,  and  that  the 
said  plaintiff  may  have  judgment  and  execution  against  the  said 
defendant,  A.  L.,  for  any  deficiency  which  may  remain  after  ap- 
plying all  the  proceeds  of  the  sale  of  said  premises  properly  ap- 
plicable to  the  satisfaction  of  said  judgment.  That  the  plaintiff, 
or  any  other  parties  to  the  suit,  may  become  purchaser  at  said 
sale ;  that  the  sheriff  [or  commissioner]  execute  a  deed  to  the 
purcliaser;  that  the  said  purchaser  be  let  into  the  possession  of 
the  premises  on  production  of  the  sheriff's  [or  commissioner's] 
deed  therefor ;  and  that  he  may  have  such  further  relief  in  the 
premises  as  to  this  court  may  seem  meet  and  agreeable  to  equity. 


574  New  Book  of  Forms. 


No.  961. — Complaint — Partition  of    Land  Held    in    Common 

with  Estate. 

[Title  of  Court  and  Cause.] 

Plaintiff  complaining  avers :  that  on  or  about  the  20th  day  of 
June,  i8pi,  she  and  the  defendant,  B.  and  S.  D.,  deceased,  pur- 
chased from  the  owner  those  certain  parcels  of  real  property  sit- 
uate in  the  city  and  county  of  San  Francisco,  in  the  State  of  Cal- 
ifornia, constituting  part  of  blocks  numbers  one  hundred  and  six- 
ty-three and  one  hundred  and  eighty-six  of  the  Central  Park 
Homestead  Association,  and  bounded  as  follows:  [Description.] 
That  the  plaintiff,  the  defendant  B.  and  said  S.  D.,  deceased,  each 
contributed  and  advanced  the  equal  one-third  of  the  purcliase  price 
of  said  real  property,  but  it  was  agreed  between  them  that  the 
property  should  be  conveyed  to  the  defendant  B.,  and  that  he 
should  hold  the  legal  title  thereto  in  trust  one-third  for  this  plain- 
tiff and  one-third  for  the  said  .S".  D.,  and  thereafter  the  legal  title 
to  such  property  was  conveyed  to  the  said  B.,  and  has  ever  since 
remained  vested  in  him.  That  thereafter,  on  or  about  the  20th 
day  of  August,  i8pi,  the  defendant  B.  made,  executed  and  deliv- 
ered to  the  plaintiff  a  certain  instrument  in  writing  by  him  sub- 
scribed, wherein  and  whereby  he  acknowledged  that  he  held  the 
undivided  one-third  of  both  said  parcels  of  real  property  m  trust 
for  the  plaintiff,  and  ever  after  the  date  last  named  and  until  the 
death  of  S.  D.  hereinafter  stated,  the  plaintiff,  the  defendant  B. 
and  the  said  S.  D.  owned  and  held  all  the  said  real  property  as 
tenants  in  common  thereof,  and  the  plaintiff  and  said  B.  remained 
tenants  in  common  thereof,  each  continuing  to  be  the  owner  and 
holder  of  the  equal  undivided  one-third  thereof. 

That  on  the  5th  day  of  April,  1^04,  the  said  S.  D.  died  testate 
in  said  city  and  county,  and  by  his  last  will  and  testament  devised 
the  undivided  one-half  of  all  his  property  to  his  sister,  /.  D.,  and 
the  other  undivided  one-half  thereof  to  his  nephews  and  nieces 
and  his  grand  nephews  and  grand  nieces,  share  and  share  alike, 
and  appointed  the  defendant  /.  C.  R.  executor  of  his  said  last  will. 
That  by  an  order  of  the  superior  court  of  the  said  city  and  county, 
duly  given,  made,  and  entered  on  the  13th  day  of  May,  IQ04,  the 
said  /.  C.  R.  was  appointed  the  executor  of  the  last  will  and  testa- 
ment of  the  said  S.  D.,  deceased,  and  said  R.  thereafter,  on  the 
same  day,  qualified  as  such,  and  thereafter  on  the  same  day  there 
was  issued  to  him  out  of  said  court  letters  testamentary  on  the  es- 
tate of  said  S.  D.,  and  ever  since  the  said  last-named  date  the  de- 
fendant /.  C.  R.  has  been  and  still  is  the  duly  qualified  and  acting 
executor  of  the  estate  and  will  of  said  S.  D.,  deceased. 

That  thereafter  and  prior  to  the  ist  day  of  October,  1904,  the 
said  /.  D.  died,  as  plaintiff  is  informed  and  believes,  unmarried. 


Complaint — Pleadings,  575 

intestate,  and  childless,  and  leaving  as  her  sole  heirs  at  law  her 
nieces  and  nephews,  who  are  the  same  persons  who  are  the  neph- 
ews and  nieces  of  the  said  S.  D.,  deceased.  That  the  said  S.  D, 
left  surviving  him,  as  plaintiff  is  informed  and  believes,  one 
nephew  named  H.  W.  D.,  and  one  niece,  the  defendant,  M.  G.  S., 
and,  as  said  plaintiff  is  informed  and  believes,  the  following  grand 
nephews  and  grand  nieces,  to  wit,  the  defendants  S.  C.  S.,  M.  B. 
D.  and  S.  D. 

That  the  estate  of  said  S.  D.,  deceased,  has  never  been  dis- 
tributed by  any  order  of  court  or  otherwise,  and  his  will  admitted 
to  probate  as  aforesaid  remains  subject  to  contest.  That  there 
may  be  other  grand  nephews  and  grand  nieces  of  the  decedent, 
S.  D.,  not  hereinbefore  named  who  are  not  known  to  this  plaintiff, 
and  the  plaintiff  desires  to  proceed  against  all  persons  having  any 
interest  in  the  estate  of  S.  D.  and  not  hereinbefore  named  as  per- 
sons unknown. 

That  the  plaintiff  desires  to  have  partition  made  of  all  the  real 
property  hereinbefore  described,  and  that  the  undivided  one-third 
thereof  in  value  be  set  aside  to  her  in  severalty. 

Wherefore,  the  plaintiff  prays  that  the  real  property  hereinbe- 
fore described  be  partitioned  and  the  undivided  one-third  thereof 
in  value  set  aside  to  her  to  hold  in  severalty,  that  another  undi- 
vided one-third  be  set  aside  in  like  manner  to  the  defendant,  G. 
B.,  and  that  the  remaining  one-third  be  in  like  manner  set  aside 
to  the  heirs  and  devises  of  S.  D.,  deceased.  Plaintiff  prays  for 
such  other,  further,  and  different  relief  as  may  to  the  court  seem 
meet  and  equitable,  including  the  allowayice  to  lier  of  costs  of  suit 
and  compensation  for  Jver  counsel  herein. 

NOTE. — California,  C.  C.  P..  sec.  753.  For  the  snmmons  issnpd  in 
this  particular  case  see  "Sninmons"j  partition  of  land  drawn  under  pro- 
vsions  of  C.  C.  P.,  sec.  756. 


No.  962. — Complaint — Nuisance,  Erecting. 
[Title  of  Court  and  Cause.] 
The    plaintiff  complains,  and  alleges: 

1.  That  he  is,  and  at  all  the  times  hereinafter  mentioned  was, 
the  owner  and  possessed  of  the  house  and  lot  No.  10  L.  street,  P. 

2.  That  the  defendant  was  also  then  and  there  the  owner  and 
possessed  of  certain  other  premises  contiguous  to  [or  in  the  vicin- 
ity of]  plaintiff's  said  premises. 

3.  That  the  defendant,  on  or  about  the  twenty-eighth  day  of 
February,  1906,  erected  on  his  said  premises  a  slaughter-house 
and  cattle-pens,  and  furnaces  and  vats  for  making  lard  and  talloxc, 
and  tliereafter  kept  in  his  said  pens,  and  slaughtered  in  his  said 


576  New  Book  of  Forms. 

slaughter-house,  large  numbers  of  cattle  and  hogs,  and  made 
thereat  tallow  and  lard,  and  thereby  and  by  means  of  said  several 
acts  and  things  caused  noxious  and  offensive  smells,  and  loud  and 
offensive  noises,  and  tainted  and  connipted  the  atmosphere  so  as 
to  render  the  dwelling-house  and  premises  of  the  plaintiiT  unfit 
for  habitation,  and  compelled  plaintiff  to  remove  from  and  abandon 
the  same,  and  thereby  also  prevent  him  from  renting  or  otherwise 
receiving  anv  income  therefrom  [if  other  special  damage  accrued, 
state  it] ,  to  the  damage  of  the  plaintiflf  $200. 

No.  963. — Complaint — Ordinance,  Violation  of. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges : 

1.  That  on  or  about  the  fifth  day  of  October,  ipo6,  the  board  of 
supervisors  of  the  county  of  Napa,  in  pursuance  of  the  power  in 
them  vested  by  law,  passed  a  law  entitled,  "Aji  order,  regulation, 
or  ordinance,"  etc.  [gizing  title  of  the  same],  a  copy  of  which  is 
annexed  as  a  part  of  this  complaint. 

2.  That  since  the  rnssing  thereof,  to  wit,  on  the  fifth  day  of 
December,  IQ06,  the  defendant  [here  state  fully  zvhercin  the  de- 
fendant has  disobeyed  the  order] ,  contrary  to  the  provisions  of  the 
said  ordinance  above  mentioned. 

3.  That  by  reason  of  the  premises,  the  defendant  forfeited  to 
the  plaintiff  the  sum  of  $500. 

No.  964. — Complaint — Partners  vs. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains  of  the  defendants,  and  alleges : 

1.  That  at  the  time  hereafter  mentioned,  the  defendants  were 
copartners,  and  doing  business  as  merchants,  or  traders  [or  oth- 
eriinse],  at  the  city  of  F.,  under  the  firm  name  of  A.  B.  &  Com- 
pany. 

2.  [State  cause  of  action.] 

No.  965. — Complaint — Partner,  Surviving,  by. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges : 
I.  That  at  the  time  hereinafter  mentioned,  the  plaintifiF  and  one 

C.  D.  were  partners,  doing  business  as  merchants,  or  traders 
[or  otherwise],  at  the  city  of  K.,  under  the  firm  name  of  /.  D.  & 
Company. 

3.  That  on  the  twenty-first  day  of  August,  ipo6,  at  K.,  said  C. 

D.  died,  leaving  the  plaintiff  the  sole  survivor  of  the  said  firm. 


Complaint — Pleadixcs.  577 


No.  966. — Complaint — Pledge,  Loss  of, 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  fourth  day  of  January,  ipo6,  at  P.,  the  plaintiff 
dehvered  to  tlie  defendant  [describe  articles\,  the  property  of  this 
plaintiff,  of  the  value  of  $2,000,  by  way  of  pledge  to  defendant, 
to  secure  the  sum  of  $i,j^o,  theretofore  loaned  by  the  defendant 
to  the  plaintiff,  which  articles  the  defendant  received  for  that  pur- 
pose, and  agreed  with  the  plaintiff  to  take  good  care  of  the  same 
until  they  should  be  redeemed  by  the  plaintiff. 

2.  That  the  defendant  has  failed  to  fulfill  said  agreement  on 
his  part ;  and,  on  tlie  contrary,  so  negligently  and  carelessly  kept 
said  articles,  that  while  they  were  in  his  possession  for  the  pur- 
poses aforesaid,  they  were,  through  his  negligence,  lost,  to  the 
damage  of  the  plaintiff  $2,000. 


No.  967. — Complaint — Promise,  Express — Precedent  Debt. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges : 

1.  That  on  the  fifth  day  of  July,  igo6,  at  San  Francisco,  the 
defendant  was  then  indebted  to  the  plaintiff  in  the  sum  of  $770 
for  [state  wlmt].  In  consideration  thereof,  he  then  promised  to 
pay  to  the  plaintiff  the  said  sum  on  the  fifth  day  of  August,  ipo6. 

2.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 


No.   968. — Complaint — Third  Person,   Promise  of. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  second  day  of  January,  igo6,  one  A.  B.  was,  and 
ever  since  has  been,  indebted  to  the  plaintiff"  in  the  sum  of  $1,2^0. 

2.  That  on  that  day  the  said  A.  B.  was  the  holder  of  a  bill  of 
exchange  [describe  it],  and  then  indorsed  and  delivered  the  same 
to  the  defendant ;  in  consideration  of  which  the  defendant  then 
and  there  promised  A.  B.  that  he  would  endeavor  to  collect  the 
same,  and  that  when  collected  he  would  apply  the  proceeds  in 
payment  of  said  indebtedness  of  said  A.  B.  to  the  plaintiff. 

3.  That  afterward,  on  the  third  day  of  August,  igoo,  the  de- 
fendant collected  and  received  tlie  same. 

4.  That  no  part  thereof  has  been  paid  to  the  plaintiff. 

New  Forms — 37 


578  New  Book  of  Forms. 


No.  969. — Complaint — Promissory  Note. 
[Title  of  Court  and  Cause.] 

The  plaintiff  in  the  above-entitled  action,  complaining  of  the 
defendant  in  said  action,  alleges: 

That  on  the  eighth  day  of  June,  ipo6,  at  the  city  and  county 
of  San  Francisco,  the  said  defendant,   W.  B.,  made  his  certain 
promissory  note,  in  writing,  bearing  date  on  that  day,  which  said 
promissory  note  is  in  the  words  and  figures  following,  to  wit : 
$3,000  San  Francisco,  June  8,  igo6. 

Sixty  days  after  date,  without  grace,  I  promise  to  pay  to  J.  J., 
or  order,  the  sum  of  three  thousand  (3,000)  dollars,  payable  only 
in  gold  coin  of  the  government  of  the  United  States,  for  value  re- 
(cived,  zvith  interest  thereon,  in  like  gold  coin,  at  the  rate  of  one 
per  cent  per  month  from  date  until  paid.  W.  B. 

And  then  and  there  delivered  the  said  promissory  note  to  the 
said  /.  /.  ivh-o  afterzvard,  on  the  said  eighth  day  of  June,  ipo6, 
duly  indorsed,  assigned,  and  delivered  said  promissory  note  to  the 
plaintiff  herein. 

That  the  said  plaintiff  is  now  the  lawful  owner  and  holder  of 
the  said  promissory  note. 

That  no  part  of  the  said  promissory  note,  or  of  the  interest 
thereon,    has   been   paid. 

That  there  is  now  due  and  unpaid  to  the  said  plaintiff  on  said 
promissory  note,  the  sum  of  three  thousand  (3,000)  dollars,  U.  S. 
gold  coin,  and  interest  thereon  at  the  rate  of  one  per  cent  per 
month  from  June  8,  igo6. 

Wherefore,  the  said  plaintiff  prays  judgment  against  the  said 
defendant  for  the  sum  of  three  thousand  ($3,000)  dollars,  U.  S. 
gold  coin,  with  interest  thereon  at  the  rate  of  one  per  cent  per 
month  from  June  8,  ipo6,  and  costs  of  suit,  and  that  said  judg- 
ment be  rendered  and  made  payable  in  United  States  gold  coin, 
pursuant  to  the  terms  of  said  promissory  note. 

No.  970. — Complaint — Promissory  Note — Holder  vs.  Indorser 

and  Maker. 

[Title  of  Court  and  Cause.] 

/.  D.  and  R.  R.,  the  plaintiffs  in  the  above-entitled  action,  com- 
plaining of  /.  S.,  T.  J.,  J.  B.  and  C.  B.,  the  defendants  in  the  said 
action,  allege: 

That  at  the  times  hereinafter  mentioned,  the  said  plaintiffs  were 
partners,  doing  business  as  traders  at  the  city  and  county  of  San 
Francisco,  under  the  hrm  and  style  of  "J.  D.  &  Co.";  and  the 


Complaint — Pleadings.  579 

said  defendants,  J.  S.  and  T.  J.,  were  partners,  doing  business  as 
merchants  at  the  said  city  and  county,  under  the  firm  and  style  of 
"J.  S.  &  Co." ;  and  the  said  defendants,  J.  B.  and  C.  B.,  were  part- 
ners, doing  business  as  merchants  at  the  "said  city  and  county,  un- 
der the  firm  and  style  of  "B.  &  B." 

That  on  the  ninth  day  of  August,  ipo6,  at  the  said  city  and 
county  of  San  Francisco,  the  said  defendants  /.  S.  and  T.  J., 
partners  as  aforesaid,  by  the  name  and  style  of  "J.  S.  &  Co.," 
made  their  certain  promissory  note  in  writiiii^,  payable  in  gold  coin 
of  the  United  States,  bearing^  date  on  that  day,  which  said  promis- 
sory note  is  in  the  words  and  figures  following,  to  wit:  [Copy  of 
the  note.]  And  then  and  there  delivered  the  said  promissory  note 
to  the  said  defendants,  B.  &  B.,  partners  as  aforesaid,  who  then 
and  there,  by  their  said  name  and  style,  indorsed  the  same,  and 
delivered  it  so  indorsed  to  the  said  plaintiffs. 

That  afterwards,  when  said  note  became  due  and  payable,  to 
wit,  on  the  ninth  day  of  October,  igo6,  it  was  presented  to  the 
said  defendants,  /.  D.  and  R.  R.,  partners  as  aforesaid,  and  pay- 
ment thereof  was  demanded  and  refused ;  of  all  which  the  said  de- 
fendants, /.  B.  and  C.  B.,  partners  as  aforesaid,  had  due  notice. 

That  said  defendants,  or  either  of  them,  have  not  paid  said  note, 
or  any  part  thereof,  and  the  same  remains  wholly  due  and  unpaid. 

That  the  said  plaintiffs  are  now  the  owners  and  holders  of  said 
promissory  note. 

\\  herefore,  the  said  plaintiffs  pray  judgment  against  the  said 
defendants  for  the  sum  of  four  thousand  dollars,  with  interest 
thereon  from  the  ninth  day  of  August,  IQ06,  at  the  rate  of  one 
per  cent  per  month,  and  costs  of  suit,  and  that  said  judgment  be 
made  payable  in  gold  coin  of  the  United  States. 


No.  971. — Complaint — Receiver,  by. 
[Title  of  Court  and  Cause.] 

The  plaintiff,  as  receiver  of  the  property  of  C.  D.,  complains, 
a/nd  alleges: 

1.  [State  cause  of  action.] 

2.  That  on  the  fifth  day  of  March,  ipo6,  at  the  city  and  coun- 
ty of  San  Francisco,  and  State  of  California,  in  an  action  then 
pending  in  the  said  superior  court,  wherein  C.  D.  was  plaintiff, 
and  B.  F.  was  defendant,  upon  an  application  made  by  the  said  A. 
B.,  and  by  order  duly  made  by  said  court  [or  judge],  this  plain- 
tiff was  appointed  receiver  of  the  property  of  the  said  C.  D.,  here- 
inafter described,  to  wit:  [Describe  property  so  as  to  shoiv  that 
th^  cause  of  action  is  embraced.] 

3.  That  thereafter,  and  before  the  commencement  of  the  pres- 
ent action,  he  gave  his  bond  required  by  the  said  order,  as  such 


580  New  Book  of  Forms. 

receiver,  approved  by  the  said  judge,  which  bond,  with  such  ap- 
proval, is  on  file  in  the  said  court,  and  was  so  filed  prior  to  the 
commencement  of  this  action. 

4.  That  on  the  fifth  day  of  March,  IQ06,  said  receiver  duly 
obtained  leave  of  the  said  court  [the  court  appointing  him]  to 
bring  this  action. 


No.  972, — Complaint — Repayment  of  Deposit. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  twenty-first  day  of  January,  igo6,  the  plaintiflF 
and  the  defendant  made  their  contract  in  writing,  subscribed  by 
them,  whereby  it  was  mutually  agreed  that  the  said  defendant 
should  sell  to  this  plaintiff,  and  the  plaintiff  should  buy  from  the 
defendant,  certain  real  estate  [describe  it],  for  the  sum  of  $2,^00, 
to  be  paid  by  the  plaintiff ;  that  the  defendant  should  make  a 
good  title  to  the  said  premises,  and  deliver  a  deed  thereof  on  the 
tzi'enty -third  day  of  January,  ipo6,  and  that  the  plaintiff  should 
thereupon  pay  to  the  said  defendant  the  said  purchase  money. 

2.  That  the  plaintiff,  as  a  security,  as  well  for  the  performance 
of  said  agreement  on  his  part  as  to  secure  a  performance  thereof 
on  the  part  of  the  defendant,  then  -and  there  deposited  in  the 
hands  of  the  said  defendant  the  sum  of  $1,250,  as  part  of  said  pur- 
chase money,  to  be  to  and  for  the  use  of  the  defendant,  and  to  be 
retained  by  him  on  account  of  the  purchase  money,  if  the  plain- 
tiff should  complete  his  purchase  and  receive  the  deed ;  but  to  be 
to  and  for  the  use  of  the  plaintiff,  and  to  be  returned  to  him,  if 
the  defendant  should  fail  to  fulfill  his  agreement  to  give  a  deed 
at  the  time  and  pursuant  to  the  agreement. 

3.  That  he  has  always  been  ready  and  willing  to  do  and  per- 
form everything  in  the  agreement  contained  on  his  part,  and  on 
tlie  said  twenty-third  day  of  January,  1906,  was  ready  and  willing, 
and  offered  to  the  defendant  to  accept  the  deed  of  the  premises 
pursuant  to  the  agreement,  and  to  pay  to  him  the  balance  of  the 
purchase  money  due  therefor. 

4.  That  the  defendant  did  not  on  the  said  twenty-third  day  of 
January,  IQ06,  nor  at  any  time  since,  give  him  a  deed  of  the 
premises  pursuant  to  the  agreement,  but  refused  to  do  so. 

5.  That  on  the  third  day  of  February,  ipo6,  he  demanded  of 
the  defendant  payment  of  the  sum  of  $1,250,  deposited  with  him 
as  aforesaid. 

6.  The  defendant  has  not  paid  the  same,  nor  any  part  thereof. 


Complaint — Pleadings.  581 


No.  973. — Complaint — Security,  not  Giving. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  eighth  day  of  June,  IQ06,  at  P.,  the  plaintiff 
caused  to  be  put  up  and  exposed  for  sale  by  public  auction,  in 
lots,  certain  goods  and  chattels,  one  of  the  said  lots  being  a  cer- 
tain carriage,  subject  to  the  following  terms,  to  wit:  that  the  high- 
est bidder  should  be  the  purchaser,  and  that  the  purchaser  should 
be  allowed  sci-cn  months'  credit  for  the  payment  of  the  price,  af- 
ter giving  such  security  as  should  be  approved  of  by  A.  B.  on  the 
part  of  the  plaintiff ;  or  that  such  purchaser  should,  at  his  election, 
pay  down  the  purchase  price  at  the  time  of  the  sale,  and  in  that 
event  that  Hvc  per  cent  should  he  deducted  by  way  of  discount, 
from  the  amount  of  the  purchase  money,  of  all  of  which  said  terms 
the  defendant,  at  the  time  of  the  sale,  had  notice. 

2.  That  at  the  said  sale  the  defendant  was  the  highest  bidder 
for,  and  was  declared  to  be  the  purchaser  of,  the  said  carriage, 
subject  to  said  terms  of  sale,  for  $2,^00. 

3.  That  the  plaintiff  then  delivered  the  carriage  to  the  defend- 
ant, as  such  purchaser,  and  was  then,  and  has  since  been,  always 
ready  and  willing  to  perform  the  said  contract  on  his  part. 

4.  That  the  defendant  has  not,  although  then  requested  by 
the  plaintiff,  paid  any  part  of  the  said  sum  of  $2,^00,  nor  has 
he  given  any  security  for  the  same,  according  to  the  said  terms 
of  sale. 


No.  974. — Complaint — Seller,  Purchaser  vs, 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  sixth  day  of  June,  1906,  at  P.,  the  plaintiff  and 
defendant  entered  into  an  agreement,   in   substance  as   follows : 

[State  the  agreem-ent.] 

2.  That  the  plaintiff  duly  performed  all  the  conditions  of  said 
contract  on  his  part,  and  was,  on  the  sixth  day  of  July,  ipo6,  at 
P.,  the  day  and  place  of  delivery,  ready  and  willing  to  deliver  said 
property,  and  tendered  the  same  to  the  defendant. 

3.  That  defendant  refused  to  accept  said  goods,  or  pay  for 
them,  pursuant  to  said  agreement,  to  the  damage  of  the  plaintiff 
$1,230. 


582  New  Book,  of  Forms. 


No.  975. — Complaint — Seller  of  Stock  vs. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges : 

1.  That  on  the  thirteenth  day  of  June,  1906,  at  P.,  the  plaintiff 
and  defendant  entered  into  an  agreement,  subscribed  by  them, 
whereby  it  was  mutually  agreed  between  them  that  the  defendant 
should  sell  and  deliver  to  the  plaintiff,  at  such  time,  within  ten 
days  thereafter,  as  the  plaintiff  should  elect,  ten  shares  of  the  cap- 
ital stock  of  the  P.  W.  C.  and  O.  D.  Company,  and  that  plaintiff 
should  pay  therefor  $2,250. 

2.  That  on  the  eighteenth  day  of  June,  igo6,  the  plaintiff  ten- 
dered to  said  defendant  the  said  sum  of  $2,250,  and  otherwise 
duly  performed  all  the  conditions  of  said  agreement  on  his  part, 
and  demanded  of  the  defendant  that  he  deliver  said  shares  of  stock 
to  the  plaintiff. 

3.  That  the  defendant  has  not  delivered  the  same. 

No.  976. — Complaint — Services — Fixed  Price, 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges : 

1.  That  between  the  thirtieth  day  of  January,  jgo6,  and  the 
twenty-eighth  day  of  February,  igo6,  plaintiff  rendered  services 
to  the  defendant,  at  his  special  instance  and  request,  in  the  capac- 
ity of  clerk  [or  otherwise.] 

2.  That  for  said  services  the  defendant  promised  to  pay  plain- 
tiff a  salary  at  the  rate  of  $150  per  month. 

3.  That  the  defendant  has  not  paid  the  said  salary  [or  that  no 
part  of  said  salary  has  been  paid,  except,  etc.] 

No.  977. — Complaint — Services — ^Fixed  Price. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  third  day  of  February,  ipo6,  at  P.,  he  furnished 
the  paint,  and  painted  defendant's  house,  at  defendant's  request. 

2.  That  defendant  promised  to  pay  him  $y§  therefor. 

3.  That  he  has  not  paid  the  same  [or  that  no  part  of  the  same 
has  been  paid,  except,  etc.] 


Complaint — Pi^icadincs.  583 


No.  978. — Complaint — Services  of  Minor  Son, 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  one  A.  B.  rendered  services  as  a  clerk  to  the  defend- 
ant, at  his  request,  at  his  store  at  P.,  from  the  first  day  of  Febru- 
ary, i8q4,  to  the  first  day  of  March,  IQ06. 

2.  That  such  services  were  reasonably  worth  $300  [or  allege 
price  agreed,  as  in  preceding  forms.] 

3.  That  the  said  A.  B.  was  then,  and  is  now,  under  twenty- 
one  years  of  age,  and  the  minor  child  of  this  plaintiff. 

4.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 


No.  979. — Complaint — Sheriff — Attachment,  Aid  of. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges : 

1.  That  he  is  the  sheriff  of  the  county  of  Napa,  duly  elected, 
qualified,  and  acting  as  such. 

2.  That  on  the  nineteenth  day  of  March,  igo6,  a  writ  of  at- 
tachment was  issued  out  of  this  court,  and  to  him  directed  and 
delivered,  as  such  sheriff,  in  an  action  against  A.  B.,  whereby  he 
was  directed  to  attach  and  keep  all  the  property  of  said  A.  B.  in 
his  county. 

3.  That  the  defendant  then  had  in  his  possession  $500  belong- 
ing to  A.  B.  [or  indebted  to  the  said  A.  B.  in  the  sum  of  $500.] 

4.  That  on  the  twenty-first  day  of  March,  1906,  the  plaintiff 
made  due  service  of  said  writ  by  delivering  to  and  leaving  with 
said  defendant  a  copy  thereof,  with  a  notice  showing  the  prop- 
erty levied  on ;  whereupon  the  plaintiff  became  entitled  to  receive 
from  the  defendant,  and  he  became  answerable  to  the  plaintiff  for 
said  $500,  which  the  defendant  refuses  to  pay  over  to  the  plain- 
tiff, or  to  account  to  him  therefor,  to  his  damage  in  $^00. 

No.  980. — Complaint — Escape  for. 
[Title  of  Court  and  Cause.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  of  issuing  the  execution  and  of  the  escape 
hereinafter  mentionerl.  the  dofendant  was  the  sheriff  of  the  coun- 
ty of  Humboldt,  in  this  State. 


5S4  New  Book  of  Forms. 

2.  That  on  the  ttventy-Hfth  day  of  January,  jgo6,  in  an  action 
in  the  superior  court  {state  court]  brought  by  this  plaintiff 
against  one  A.  B.  for  [cause  aiithoricing  arrest],  this  plaintiff  re- 
covered judgment,  duly  given  by  said  court  against  said  A.  B., 
for  $2,400. 

3.  That  on  the  fifth  day  of  Febrtiary,  ipo6,  an  execution 
against  the  property  of  said  A.  B.  was  duly  issued  out  of  the  said 
superior  court,  on  said  judgment,  and  thereafter  duly  returned 
wholly  unsatisfied. 

4.  That  thereafter,  on  the  tenth  day  of  February,  ipo6,  an 
order  of  arrest  was  issued  by  the  said  court  against  the  person 
of  said  A.  B.,  and  then  directed  and  delivered  to  the  defendant 
as  said  sheriff,  whereby  he  was  required  to  arrest  said  A.  B.,  and 
commit  him  to  the  jail  of  the  said  county  of  Humboldt,  until  he 
should  be  discharged  according  to  law. 

5.  That  thereafter  the  defendant,  as  such  sheriff,  arrested 
said  A.  B.  and  committed  him  to  jail,  pursuant  to  said  execution 
and  order  of  arrest. 

6.  That  thereupon  the  plaintiff  entered  into  an  undertaking, 
with  good  and  sufficient  sureties,  duly  executed  and  approved, 
conditioned  for  the  payment  of  the  expenses  of  said  A.  B.  for 
necessary  food,  clothing,  and  bedding  [or  state  a  deposit  for  this 
purpose.] 

7.  That  in  violation  of  his  duty  as  such  sheriff,  he  has  since, 
to  wit;  on  the  twenty-eighth  day  of  February,  ipo6,  without  the 
consent  or  connivance  of  the  plaintiff,  permitted  said  A.  B.  to 
escape,  to  the  damage  of  the  plaintiff  of  $2,400. 

Wherefore,  the  plaintiff  demands  judgment  against  the  defend- 
ant, according  to  the  statute,  for  the  debt  [or  for  damage,  or  sum 
of  money]  for  which  such  prisoner  was  committed,  to  wit:  $2,- 
400,  with  interest  from,  etc. 

No.  981. — Complaint — Sheriff  vs. — False  Return,  for. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  at  the  time  of  issuing  the  execution  hereinafter  men- 
tioned, the  defendant  was  the  sheriff  of  the  county  of  Yuba,  in 
this  State. 

2.  That  on  the  tenth  day  of  December,  igo6,  judgment  was 
duly  given  and  made  in  an  action  in  the  superior  court  of  the 
county  of  Yuba,  in  favor  of  the  plaintiff,  against  one  G.  W .,  for 

^7,000. 

3.  That  on  the  tzventieth  day  of  December,  IQ06,  an  execution 
against  the  property  of  the  said  G.  W.  was  issued  upon  the  said 


Complaint — Pleadings.  585 

judgment  directed  and  delivered  to  the  defendant,  as  sheriff  afore- 
said. 

4.  That  the  defendant  afterward,  and  during  the  hfe  tliereof, 
levied,  under  the  said  execution,  on  property  of  the  =aid  W.  of 
the  value  of  $1,000  [or  sufficient  to  satisfy  the  said  judgment, 
with  all  the  expenses  of  the  execution ;  or  state  particulars  of 
property  on  which  he  mi^ht  have  levied.] 

5.  That  the  defendant  afterward,  in  violation  of  his  duty  as 
such  sheriff,  falsely  returned  upon  the  said  execution,  to  the  clerk 
of  the  county  of  Yuba,  that  the  said  JV.  had  no  property  in  his 
county  on  which  he  could  levy  the  amount  of  said  judgment,  or 
any  part  thereof. 

6.  That  by  reason  of  said  premises,  the  plaintiff  has  been  de- 
prived of  the  means  of  obtaining  the  said  moneys  directed  to  be 
levied  as  aforesaid,  and  which  are  still  wholly  unpaid,  and  is  like- 
ly to  lose  the  same. 

No.  982. — Complaint — Sheriff  vs. — Moneys  Collected  for. 
[Title  of  Court  and  Cause.] 

The  plaintiff  complains,  and  alleges: 

1.  That  at  the  time  hereinafter  mentioned,  the  defendant  was 
the  sheriff  of  the  county  of  San  Mateo,  in  this  State. 

2.  That  on  the  twenty-fifth  day  of  November,  igo6,  at  San 
Mateo,  an  execution,  then  duly  issued,  in  form  and  effect  as  re- 
quired by  law,  against  the  property  of  one  A.  B.,  and  in  favor  of 
the  plaintiff,  upon  a  judgment  for  the  sum  of  $330,  theretofore 
duly  given  in  favor  of  the  plaintiff  against  said  A.  B.,  in  the  su- 
perior court  of  the  county  of  San  Mateo,  in  this  State,  was  by 
the  plaintiff  directed  and  delivered  to  the  defendant  as  such  sher- 
iff. 

3.  That  the  defendant  thereafter,  as  such  sheriff,  collected 
and  received  upon  said  execution,  to  the  use  of  the  plaintiff,  the 
sum  of  $350,  beside  his  lawful  fees. 

4.  That  although  more  than  sixty  days  elapsed,  after  the  de- 
livery of  said  execution  to  the  defendant,  before  this  action,  yet 
he  has,  in  violation  of  his  duty  as  sheriff,  failed  to  pay  over  to 
the  plaintiff'  the  amount  so  collected. 

No.  983. — Complaint — Sheriff  vs. — Neglecting  to  Return  Exe- 
cution. 
[Title  of  Court  and  Cause.] 

The  plaintiff'  complains,  and  alleges: 

I.  That  at  the  time  of  the  issuing  of  the  execution  hereinafter 
mentioned,  the  defendant  was  the  sheriff'  of  the  county  of  Mann, 
in  this  State. 


586  New  Book  of  Forms. 

2.  That  on  the  eighth  day  of  October,  ipo6.  in  an  action  in  the 
superior  court  of  the  county  of  Marin,  in  this  State,  wherein  this 
plaintiff  was  plaintiff,  and  one  A.  B.  was  defendant,  the  plaintiff 
recovered  a  judgment  duly  given  by  said  court  against  the  said 
A.  B.  for  $200. 

3.  That  on  the  Hfteenth  day  of  October,  ipo6,  an  execution 
against  the  property  of  said  A.  B.  was  issued  on  said  judgment 
and  directed,  and  then  delivered  to  the  defendant,  as  sheriff  of 
the  county  of  Marin,  of  which  execution  the  following  is  a  copy : 
[Copy  the  execution  and  indorsement.] 

4.  That  although  more  than  ten  days  elapsed  after  delivery 
of  said  execution  to  the  defendant,  and  before  the  commencement 
of  this  action,  yet  he  has,  in  violation  of  his  duty  as  snch  sher- 
iff, failed  to  return  the  same,  to  the  damage  of  the  plaintiff  in 
$500- 


No.    984. — Complaint — Sheriff    vs. — Not    Executing    Process. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges : 

1.  That  at  the  time  of  issuing  the  execution  hereinafter  men- 
tioned, the  defendant  was  the  sheriff  of  the  county  of  Sacramen- 
to, in  this  State. 

2.  That  on  the  twenty-seventh  day  of  September,  igo6,  at  K., 
judgment  was  duly  given  and  made  in  an  action  in  the  superior 
court,  in  favor  of  the  plaintiff,  against  one  B.  P.,  for  $^00. 

3.  That  on  the  tenth  day  of  October,  IQ06,  an  execution 
against  the  property  of  the  said  B.  F.  was  issued  upon  the  said 
judgment,  and  directed  and  then  delivered  to  the  defendant  as 
sheriff  aforesaid. 

4.  That  on  that  day  the  said  E.  P.  had  a  large  quantity  of 
general  merchandise  in  his  store,  No.  12/  Pirst  street,  Sacra- 
mento, and  owned  the  said  store  and  lot  [or,  as  the  case  may  be], 
in  the  said  county,  out  of  which  the  said  execution  n, !;;ht  have 
been  satisfied,  of  which  the  defendant  had  notice. 

5.  That  he  refused  and  neglected  to  make  a  levy  under  or  by 
virtue  of  said  execution,  upon  said  property,  or  any  part  there- 
of [or  as  the  case  may  be;  and  if  he  levies  a  part,' specify  it],  as 
by  said  execution  he  was  required  to  do,  to  the  damage  of  the 
plaintiff  of  $2,000, 


CoMPtAiNT — Pleadings.  587 


No.  985. — Complaint — Sheriff  vs. — Not  Levying. 

[Title  of  Court  and  Cause.] 

[Allege  as  in  preceding  form  down  to  paragraph  4  and  insert:] 
4.  That  the  defendant  neglected  to  make  any  levy  on  the 
goods  and  chattels,  lands,  and  tenements  of  the  said  G.  IV.;  and 
falsely  and  fraudulently  returned  upon  the  said  writ  to  the  said 
court,  that  the  said  G.  W.  had  not  any  goods  or  chattels,  lands, 
or  tenements,  in  his  county.  That  by  reason  of  the  premises,  the 
plaintiff  is  deprived  of  his  remedy  for  obtaining  payment  of  his 
judgment  and  costs  aforesaid,  and  has  wholly  lost  the  same. 


No.  986. — Complaint — Sheriff's  Sale — Purchaser,  by. 
[Title  of  Court  and  Cause.] 

The  plaintiff  complains,  and  alleges : 

1.  That  on  tlie  tenth  day  of  March,  jpo6,  one  A.  B.  was  the 
owner  in  fee  of  tlie  following  described  premises  [description  of 
premises.  ] 

2.  That  the  said  premises  were  at  the  time  subject  to  the  lien 
of  a  judgment  recovered  by  one  C.  D.  against  E.  t.,  in  an  action 
in  the  superior  court  of  the  county  of  t'rcsno,  in  this  State,  which 
judgment  was  docketed  in  said. county  [or  state  the  county], 
and  that  the  sheriff  of  said  county,  by  virtue  of  an  execution  is- 
sued thereon,  sold  tlie  same. 

3.  That  at  such  sale  the  plaintiff  became  a  purchaser,  and 
tlie  sheriff"  executed  and  delivered  to  him  a  certificate  of  the  said 
sale,  and  on  the  fwenty-sixth  day  of  March,  i(^oo,  and  before  this 
action,  executed  and  delivered  to  plaintiff'  a  deed  of  tlie  premises 
pursuant  to  the  said  sale  tliereof,  and  tlie  plaintiff'  paid  the  pur- 
chase money  therefor. 

4.  That  intermediate  the  sale  and  delivery  of  the  deed,  the 
defendant  being  in  possession  [allege  act  of  waste  arui  aauia^g, 
against  form  of  the  statute.] 


No.  987. — Complaint — Sole  Trader — Married  Woman. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges : 

1.  That  the  defendant  is  the  wife  of  one  A.  B. 

2.  That  on  the  nineteenth  day  of  October,  igo6,  by  a  decree 
of  the  superior  court  of  the  county  of  Solano,  in  this  State,  the 


5SS  Mew  Book  of  Forms. 

defendant  was  decreed  a  sole  trader ;  and  at  the  time  of  making 
the  note  hereafter  mentioned,  the  defendant  was,  and  still  is,  a 
sole  trader,  carrying  on  business  as  a  milliner,  at  A. 

3.  That  on  the  tenth  day  of  November,  igo6,  at  A.,  the  plain- 
tiff sold  and  delivered  to  the  defendant,  at  her  request,  goods  of 
the  value  of  $^0,  which  were  used  by  the  defendant  in  her  said 
business,  as  sole  trader. 

4.  That  in  consideration  thereof,  the  defendant,  as  sole  trader, 
made  her  promissory  note,  of  which  the  following  is  a  copy: 
[Copy  note.] 

5-     That  she  has  not  paid  the  same. 

No.  988. — Complaint — Statute,  Penalty  Under. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges : 

1.  That  on  the  tenth  day  of  September,  igo6,  at  R.,  the  de- 
fendant [here  state  acts  constituting  a  violation  of  the  statute, 
either  following  the  words  of  the  statute,  or  setting  forth  the 
facts  more  specifically]  against  the  form  of  the  statute  [or  sta- 
tutes, as  the  case  may  be],  in  such  case  made  and  provided. 

2.  That  thereby  the  defendant  became  indebted  in  the  sum  of 
{amount  of  penalty]  to  [one  for  whose  use  the  action  is  given], 
whereby  an  action  accrued  to  the  plaintiff  according  to  the  pro- 
visions of  [describing  the  statute  in  such  terms  as  the  case  may 
require.] 

No.  989. — Complaint — Subscription — Public  Object. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  [Aver  incorporation.] 

2.  That  the  plaintiff,  in  the  month  of  March,  igo6,  was  erect- 
ing a  building  at  B.,  for  the  purpose  of  public  tvorship. 

3.  That  the  defendant  and  others  requested  the  plaintiff  to 
complete  the  same,  and  for  the  purpose  of  enabling  the  plaintiff 
to  do  so,  they  subscribed  and  agreed  to  pay  to  the  plaintiff  the 
sum  of  $^0,  in  consideration  of  the  premises,  and  of  the  like  sub- 
scription and  agreement  of  other  persons. 

4.  That  upon  the  faith  of  said  subscription  the  plaintiff  pro- 
ceeded with  the  erection  of  the  building,  and  expended  thereon 
large  sums  of  money,  and  incurred  large  liabilities,  and  completed 
said  building,  and  otherwise  duly  performed  all  the  conditions  on 
its  part. 


CoMi'LAixT — Pleadings.  5S9 

5.     That  the  defendant  has  not  paid  said  subscription,  or  any 
part  thereof  [except,  etc.] 


No.  990. — Complaint — Surety  vs.  Principal 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleo^es: 

1.  That  on  the  second  day  of  June,  iQod,  at  P.,  in  considera- 
tion that  the  plaintiff  would  become  surety  for  him,  by  executing 
an  undertaking-,  of  which  a  copy  is  annexed  as  a  part  of  this  com- 
plaint, marked  "Exhibit  A,"  the  defendant  agreed  with  the  plain- 
tiff that  he  would  indemnify  him,  and  save  him  harmless  from 
and  against  all  damages,  costs,  and  charges  which  he  might  sus- 
tain by  reason  of  his  becoming  surety  as  aforesaid. 

2.  That  the  plaintiff,  confiding  in  such  promise  of  the  defend- 
ant, executed  and  delivered  such  undertaking. 

3.  That  the  defendant  did  not  indemnify  the  plaintiff,  and 
save  him  harmless  from  such  damages,  costs  and  charges ;  but, 
on  the  contrary,  the  plaintiff,  under  a  judgment,  on  the  fifth  day 
of  August,  IQ06,  rendered  against  him  by  the  justice's  court,  at 
P.,  in  an  action  brought  against  him  upon  said  undertaking,  paid, 
on  the  sixth  day  of  August,  igo6,  $f,o  to  A.  B.,  in  satisfaction 
and  discharge  of  said  undertaking,  and  also  necessary  costs  and 
expenses  in  said  action  and  on  account  of  said  undertaking,  to 
the  amount  of  $330. 

4.  That  notice  thereof  was  given  to  the  defendant,  and  that 
the  plaintiff'  duly  performed  all  the  conditions  of  the  said  agree- 
ment on  his  part. 

5.  That  the  defendant  has  not  paid  the  same  to  the  plaintiff. 
[Annex  copy  of  undertaking,  marked  "Exhibit  A."] 


No.  991. — Complaint — Tax,  State  and  County. 
[Title  of  Court  and  Cause.] 

The  plaintiff,  by  A.  B.,  district  attorney  of  the  city  and  county 
of  San  Francisco,  complains  of  /.  /.,  /.  D.  and  R.  R.: 

I.  That  between  the  sixth  day  of  January,  ipo6,  and  the  sixth 
day  of  June,  j^o6,  A.  B.,  in  the  city  and  county  of  San  Fran-- 
CISCO,  in  the  State  of  California,  then  and  there  being  county  as- 
sessor of  said  county,  did  duly  assess  and  set  down  upon  an  as- 
sessment-roll all  the  property,  real  and  personal,  in  said  county, 
subject  to  taxation ;  that  said  assessment-roll  was  afterward  sub- 
mitted to  the  board  of  equalization  of  said  county,  and  was  by 


590  New  Book  of  Forms. 

said  board  duly  equalized,  as  provided  by  law ;  that  the  said  J.  J. 
was  then  and  there  the  owner  of,  and  that  there  was  duly  assessed 
to  him,  the  following^  described  real  estate,  improvements  upon 
real  estate,  certain  personal  property  [state  kinds'],  and  also  cer- 
tain dogs,  to  wit: 

Said  real  estate,  valued  and  so  assessed  at $5,ooo 

Said  improvements,  valued  and  so  assessed  at.  . .  .  ^oo.  . .  . 
Said  personal  property,  valued  and  so  assessed  at.  .  2^0 
2.  That  each  of  the  other  persons,  defendants  herein,  have 
and  claim  a  title  to,  and  an  interest  in,  said  real  estate,  improve- 
ments on  real  estate,  and  personal  property,  and  are  liable  for, 
and  in  duty  bound  to  pay,  the  taxes  herein  specified ;  that  upon 
said  property  there  has  been  duly  levied  for  the  fiscal  year  /pod; 

A  state  tax  of $15 

A  county  tax  of 40 

Amounting  in  the  whole  to 5S 

All  of  zvhich  is  due  and  unpaid,  of  zvhich  amount  $40  zvas  4<uly 
assessed  and  levied  against  the  real  estate  aforesaid,  and  $15 
against  the  improvements  aforesaid. 

Wherefore,  said  plaintifiFs  pray  judgment  against  said  persons, 
defendants  herein,  for  the  sum  of  $^^,  and  that  said  taxes,  and 
all  costs  subsequent  to  the  assessment  of  said  tax,  and  all  costs 
and  expenses  of  this  suit,  be  paid  in  gold  and  silver  coin  of  the 
United  States,  and  plaintififs  pray  for  such  other  judgment  as  to 
justice  belongs. 


No.  992. — Complaint — Telegraph  Company  vs. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  the  defendant  is  a  corporation  organized  and  doing 
business  under  the  laws  of  this  State,  and  is,  and  at  all  times 
hereinafter  mentioned,  was  engaged  in  the  business  of  telegraph- 
ing for  hire. 

2.  That  on  the  eighteenth  day  of  January,  ipo6,  the  plaintiff 
presented  to  the  defendant,  at  its  office  in  M.,  the  following  mes- 
sage, to  wit : 

"J.  D.,  San  Francisco.  Buy  one  hundred  tons  of  wheat.  J.  R. 
[the  plaintiff.]" 

Which  message  defendant  received  and  promised  to  forward, 
by  telegraph,  to  said  /.  D.,  in  San  Francisco.  That  in  considera- 
tion thereof  the  plaintiff  paid  the  defendant  $20. 

3.  That  on  account  of  the  negligence  of  the  defendant  said 
message  was  not  transmitted  as  written  by  plaintiff,  but  was  sent 
and  delivered  to  said  /.  D.  so  as  to  read  as  follows : 


CoMPivAiNT — Pleadings,  591 

"/.  D.,  San  Francisco.    Buy  five  hundred  tons  of  wheat.   J.  R." 

4.  TluLt  said  J.  D.,  in  pursuance  of  said  message  so  delivered 
to  him,  bought  five  hundred  tons  of  wheat  for  the  account  of  the 
plaintiff ;  that  immediately  on  learning  the  error  in  said  telegram, 
plaintiff  notified  the  defendant  of  the  same,  and  that  through  said 
error  four  hundred  tons  of  wheat  had  been  bought  more  than  was 
directed  to  be  bought  by  the  original  message  written  by  the  plain- 
tiff, and  plaintiff  asked  instructions  from  defendant  relative  to 
the  disposition  of  said  four  hundred  tons.  The  defendant  refused 
to  take  any  notice  thereof,  or  give  any  instructions  concerning 
scud  zvheat,  and  the  plaintiff  thereupon  sold  the  savie  at  San  Fran- 
cisco, on  the  thirtieth  day  of  January,  IQ06,  at  the  highest  market 
rate. 

5.  That  the  price  paid  by  said  plaintiff  for  said  wheat  was 
$5,000,  and  plaintiff  was  compelled  to  pay  the  further  sum  of 
^700,  commissions  on  said  purchase;  that  plaintiff  sold  said  wheat 
for  $4,000,  and  was  compelled  to  pay  $75  commissions  on  said 
sale. 

No.  993. — Complaint — Title,  Quiet 

[Title  of  Court  and  Cause.] 

/.  D.,  the  plaintiff  in  this  action,  complains  of  the  above-named 
defendants,  and  for  cause  of  action  alleges : 

That  the  plaintiff,  above  named,  is  now,  and  for  a  long  time 
hitherto  has  beefi,  the  ozvner,  and  in  possession  of  that  certain 
piece  or  parcel  of  land  situate,  lying,  and  being  in  said  county  of 
San  Mateo,  and  bounded  and  described,  as  follows,  to  wit :  [De- 
scription.] 

And  plaintiff  further  avers  that  the  said  defendants  claim  and 
assert  an  interest  [or  interests]  therein  adverse  to  the  plaintiff, 
and  that  the  claims  of  said  defendants  are  without  any  right 
whatever,  and  that  the  said  defendants  have  not,  nor  have  either 
of  them,  and  estate,  right,  title,  or  interest  whatever,  in  said  land 
or  premises,  or  any  part  thereof. 

Wherefore,  plaintiff  prays  that  said  defendants  may  be  re- 
quired to  set  forth  the  nature  of  their  several  claims,  and  that  all 
adverse  claims  of  the  said  defendants,  or  either  of  them,  may  be 
determined  by  a  decree  of  this  court ;  and  that  by  said  decree,  it 
be  declared  and  adjudged  that  said  plaintiff  is  the  owner  of  said 
premises,  and  that  the  defendants,  or  eithe/  of  them,  have  no 
estate  or  interest  whatever  in  or  to  said  land  and  premises ;  and 
also  that  the  said  defendants,  and  each  and  everv  of  them,  be  for- 
ever debarred  from  ascerting  any  claim  whatever  in  or  to  said 
land  and  premises  adverse  to  the  plaintiff,  and  for  sucli  other  and 
further  relief  as  to  equity  shall  seem  meet. 

And  the  plaintiff  will  ever  pray,  etc. 


592  New  Book  of  Forms. 


No.  994- — Complaint — Title,  Warranty  of. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleg^es: 

1.  That  on  the  seventeenth  day  of  May,  igo6,  at  P.,  the  de- 
fendant, in  consideration  of  $2,500  to  him  paid,  granted  to  the 
plaintiff,  by  deed  [here  insert  description'],  and  in  his  said  deed 
warranted  that  he  had  good  title  in  fee  simple  to  the  said  prop- 
erty, and  would  defend  the  plaintiff  in  his  possession  of  the  same. 

2.  That  the  defendant  was  not,  but  one  A.  B.  was,  then  the 
lawful  owner  of  the  said  lands,  in  fee  simple. 

3.  That  on  the  nineteenth  day  of  May,  ipo6,  the  said  A.  B. 
lawfully  evicted  the  plaintiff  from  the  same,  and  still  withholds 
the  possession  thereof  from  him. 


No.  995. — Complaint — ^Title,  Warranty  of. 

[Title  of  Court  and  Cause.] 

The  plaintiff  complains,  and  alleges: 

1.  That  on  the  second  day  of  July,  IQ06,  at  P.,  the  defendant 
sold  to  the  plaintiff  [state  the  article  sold]   for  $1,500. 

2.  That  by  said  contract  of  sale  it  was  understood  by  the  plain- 
tiff and  the  defendant  to  be,  and  it  was,  a  part  of  the  terms  and 
consideration  of  said  contract  of  sale,  that  the  defendant  had  the 
lawful  right  and  title  to  so  sell,  and  to  transfer  the  ownership  of 
said  goods  to  the  plaintiff. 

3.  That  the  defendant  had,  in  fact,  no  right  or  title  to  sell  or 
dispose  of  said  goods. 

4.  That  one  E.  F.  then  was  the  owner  of  said  goods,  and  after- 
ward, on  the  tenth  day  of  Jtdy,  ipo6,  he  demanded  possession  of 
the  same  from  the  plaintiff;  and  the  plaintiff  was  compelled,  and 
did  then  deliver  them  up  to  B.  P.,  and  they  were  wholly  lost  to 
the  plaintiff. 

5.  That  by  reason  of  the  premises,  the  plaintiff  was  misled 
and  injured,  to  his  damage  $1,500. 


No.  996. — Complaint — Undertaking  on. 
[Title  of  Court  and  Cause.] 

The  plaintiff  complains,  and  alleges: 

I.     That  on  the  twenty-third  day  of  June,  ipo6,  an  attachment 
against  the  property  of  C.  D.  was  issued  out  of  the  superior  court 


Complaint — Pleadings.  593 

of  said  county,  in  an  action  commenced  by  A.  B.,  the  plaintiff 
herein,  against  said  C.  D.,  the  defendant  herein,  to  recover  [state 
what.] 

2.  That  afterward,  on  the  twenty-ninth  day  of  June,  J(^o6. 
at  P.,  the  said  C.  D.  appeared  in  said  action,  and  appUed  for  a 
discharge  of  said  attachment,  and  that  the  defendants  herein,  £. 
F.  and  G.  H.,  thereupon  executed  and  dehvered  to  tliis  plaintiff  a 
written  undertaking,  pursuant  to  law,  a  copy  of  which  is  hereto 
annexed  and  made  a  part  of  this  complaint,  marked  "Exhibit  A." 

3.  That  upon  delivery  of  said  undertaking  the  said  attach- 
ment was  discharged  and  the  property  was  released,  and  that 
subsequently,  on  the  tenth  day  of  July,  igo6,  said  plaintiff  recov- 
ered judgment  against  the  said  C.  D.,  which  was  rendered  in  said 
action  for  $500,  damages  and  costs,  which  judgment  was  entered 
and  docketed  in  the  office  of  the  clerk  of  said  court,  on  the  twen- 
tieth day  of  July,  igo6,  and  that  said  judgment  has  not  been  paid. 

4.  That  on  the  twenty-fifth  day  of  July,  ipo6,  this  plaintiff  de- 
manded of  the  defendants  herein  payment  of  said  judgment, 
which  was  by  each  and  all  of  them  refused. 

5.  That  they  have  not  paid  the  same,  nor  any  part  thereof. 
[Annex  copy  of  undertaking,  marked  "Exhibit  A."] 


No.  997, — Complaint — Undertaking  on. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  heretofore  this  plaintiff  commenced  an  action  in  the 
superior  court  of  San  Mateo  county,  against  A.  B.,  to  recover 
possession  of  specific  personal  property. 

2.  That  in  the  course  of  said  action  such  proceedings  of 
claim  and  delivery,  under  and  pursuant  to  the  statute,  were  had, 
that  on  the  tzventy-fourth  day  of  Jn)ie,  ipo6,  the  defendants  made 
and  delivered  to  the  constable  serving  said  writ,  for  the  use  of 
this  plaintiff,  pursuant  to  the  statute,  their  written  undertaking, 
of  which  the  following  is  a  copy:  [Copy  of  the  undertaking.] 

3.  That  the  personal  property  referred  to  in  said  undertaking 
was  delivered  [or  released]  to  the  said  A.  B.,  defendant  in  said 
action,  pursuant  to  said  undertaking,  and  to  a  requisition  of  said 
A.  B.,  defendant  in  said  action,  made  pursuant  to  law,  and  said 
undertaking  was  thereupon  delivered  to  this  plaintiff. 

4.  That  such  proceedings  were  afterward  had,  that,  on  the 
sez'enteenth  day  of  July,  ipo6,  a  decision  in  the  said  court  was 
rendered  against  the  said  A.  B.,  wherein  the  value  of  the  said 

New  Forms — 38 


594  New  Book  of  Forms. 

property  was  found  to  be  $2,750,  whereupon  judgment  was  ren- 
dered against  A.  B.,  the  defendant  therein,  that  the  plaintiff  re- 
cover possession  of  said  property,  or  the  sum  of  $2,y§o,  in  case  a 
dehvery  could  not  be  had. 

5.  That  the  defendant  has  not  returned  said  property,  nor 
othen\'ise  paid  or  satisfied  said  judgment. 

6.  [State  demand,  where  that  is  necessary.'] 

7.  That  this  plaintiff  thereafter  caused  execution  to  be  issued 
on  said  judgment  against  the  said  defendant,  A.  B.,  which  exe- 
cution has  been  returned  wholly  misatisfied. 


No.  998. — Complaint — Vicious  Dog,  Injuries  by, 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  fourteenth  day  of  August,  igo6,  at  P.,  the  de- 
fendant was  the  keeper  [or  ozvner]  of  a  certain  vicious  dog,  which 
was  accustomed  to  bite  mankind. 

2.  That  the  said  defendant,  well  knowing  the  premises,  did 
wrongfr.liy  and  injuriously  keep  and  harbor  the  said  vicious  dog, 
and  wrongfully  and  negligently  suffered  such  dog  to  go  at  large 
without  being  properly  guarded  or  confined. 

3.  That  while  so  kept  as  aforesaid,  the  said  dog  did  bite  and 
greatly  wound  this  plaintiff  [state  the.  particulars],  whereby  this 
plaintiff  became  sick,  and  sore,  and  lame,  and. so  continued  for 
the  space  of  six  months  thence  next  following,  and  was  obliged 
to  pay,  and  did  expend,  $1,000  for  medical  attendance  consequent 
thereon,  and  was  prevented  during  all  said  months  of  sickness 
from  attending  to  his  lawful  affairs,  to  his  damage  $2,500. 


No.  999. — Complaint — Wager,  to  Recover  Back. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  tzventy-second  day  of  January,  ipo6,  at  M.,  the 
plaintiff  deposited  in  the  hands  of  the  defendant,  as  stakeholder, 
$300,  vrhich  was  to  abide  the  event  of  a  wager  made  between  the 
plaintiff  and  one  A.  B.,  on  the  result  of  [here  state  what,  as  elec- 
tion, race,  or  otherwise.] 

2.  That  such  wager  was  in  violation  of  the  statute  entitled, 
"An  Act,"  etc.  [title  of  act],  passed  January  21,  1905,  and  the 
acts  amendatory  thereof  and  supplementary  thereto. 


Complaint — Pleadings.  595 

3.  That  no  decision  has  as  yet  been  rendered  upon  said  elec- 
tion [race  or  otherwise]  ;  and  that  the  defendant  still  retains  said 
money  as  stakeholder. 

4.  That  on  the  second  day  of  February,  IQ06,  the  plaintiff  de- 
manded the  return  of  said  money  of  the  defendant. 

5.  That  the  defendant  has  not  returned  or  paid  back  the 
same. 

No.  1000. — Complaint — Warehouseman  Injury  to  Goods. 
[Title  of  Court  and  Cause.] 

The  plaintiff  complains,  and  alleges: 

1.  That  on  the  toitli  day  of  January,  igo6,  at  P..  the  defend- 
ant, in  consideration  of  the  sum  of  $2^0,  then  and  there  paid  to 
him  by  plaintiff,  agreed  to  store  and  keep  safely  in  his  warehouse 
at  P.,  the  following  goods,  the  property  of  the  plaintiff,  of  the  val- 
ue of  $2,^00.  consisting  of  [here  designate  goods],  for  the  term 
of  four  weeks  from  said  date,  and  then  safely  to  deliver  said 
goods  to  plaintiff  at  his  request,  and  then  and  there  received  said 
goods  for  such  purpose. 

2.  That  at  the  time  of  the  delivery  of  said  goods  to  defendant 
the  plaintiff  informed  him  that  it  was  necessary  to  the  preserva- 
tion of  said  goods  that  they  should  be  handled  with  care. 

3.  That  the  defendant  negligently  allowed  the  same  to  be 
handled  without  care,  and  roughly  moved  and  broken,  so  that 
the  same,  through  the  negligence  of  the  defendant  and  his  serv- 
ants, became  entirely  ruined,  to  the  damage  of  the  plaintiff,  $2,- 
500. 

No.  looi. — Complaint — Water,  Escape  of. 
[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  fourteenth  day  of  February,  ipo6,  the  plaintiff 
was  in  the  possession  and  occupancy  of  that  certain  building  sit- 
uate on  L  street,  in  the  city  and  county  of  San  Francisco,  known 
as  No.  15,  and  was  engaged  in  carrying  on  therein  a  general  mer- 
chandise business,  and  owned  and  had  stored  therein  large  quan- 
tities of  goods,  to  wit :  groceries  of  the  value  of  $10,000. 

2.  That  the  defendant  is,  and  at  all  times  herein  mentioned 
was,  a  corporation  duly  incorporated  and  existing  under  the  laws 
of  the  State  of  California,  and  that  the  business  of  said  corpora- 
tion has  been,  and  is,  to  supply  the  inhabitants  of  said  city  afui 
county  with  fresh  water,  whicli  water  was  and  is  supplied  through 


596  Ne;w  Book  of  Forms. 

iron  pipes  heretofore  laid  by  the  defendant  through  the  principal 
streets  of  said  city  and  county,  and  that  said  pipes  were  and  are 
owned  and  controlled  by  the  defendant. 

3.  That  at  all  times  herein  mentioned  a  water  pipe  or  main  was 
laid  on  L  street,  through  zvhich  water  was  then  flozving  in  great 
quantity,  and  with  great  velocity,  and  under  great  pressure,  and 
that  said  pipe  was  then  owned  and  controlled  by  tJie  defendant, 
and  was  used  by  it  in  conducting  and  distributing  zvater  to  the 
inhabitants    of  said  city  and  county. 

4.  That  on  the  said  last-mentioned  day  defendant,  by  its 
agents  and  servants,  was  engaged  in  repairing  said  water  pipe  or 
main,  situate  as  aforesaid,  on  L  street,  while  the  water  was  flow- 
ing through  said  main,  but  in  so  doing  did  not  use  proper  or  any 
care  therein,  as  it  could  and  should  have  done,  by  shutting  ofif  the 
flow  of  water  through  said  main  during  the  process  of  making 
said  repairs;  but,  on  the  contrary,  said  defendant,  and  its  agents 
and  servants,  were  guilty  of  gross  negligence  and  carelessness  in 
endeavoring  to  make  said  repairs  while  the  water  continued  to 
flow  through  said  principal  main,  and  thereby  a  large  quantity 
of  water  was  permitted  to  escape,  and  did  escape,  from  said  main 
with  great  force  and  velocity,  and  under  great  pressure,  and  that 
by  reason  thereof  said  water  ascended  to  a  great  height,  to  wit ; 
to  the  height  of  forty  feet  and  upward,  and  fell  upon  the  roof  of 
the  building  occupied  by  the  plaintiff,  and  descended  into  the 
floors  below,  and  flowed  over,  upon  and  around  goods  which  this 
plaintiff  then  owned  and  had  there  stored,  and  completely  de- 
stroyed and  rendered  valueless  large  quantities  of  the  same,  which 
were  then  of  great  value ;  to  wit,  of  the  value  of  $1,000,  to  the 
great  injury  and  damage  of  this  plaintiff,  in  the  sum  of  $1,000. 


No.  1002. — Complaint — Wife,  Enticing  Away. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  A.  B.  is,  and  at  the  time  hereinafter  mentioned  was, 
the  wife  of  the  plaintiff. 

2.  That  on  or  about  the  nineteenth  day  of  August,  igo6, 
while  the  plaintiff  was  living  and  cohabitating  with  and  support- 
ing her,  at  P.,  and  while  they  were  living  together  happily  as 
man  and  wife,  the  defendant,  wrongfully  contriving  and  intend- 
ing to  injure  the  plaintiff,  and  to  deprive  him  of  her  comfort,  so- 
ciety, and  assistance,  maliciously  enticed  her  away  from  the  plain- 
tiff's and  her  then  residence  in  P.,  to  a  separate  residence  in  Q., 
and  has  ever  since  there  detained  and  harbored  her,  against  the 
consent  of  the  plaintiff. 


Complaint — Pleadings.  597 

3.  That  by  reason  of  the  premises  the  plaintiff  has  been,  and 
still  is,  wrongfully  deprived  by  the  defendant  of  the  comfort, 
society,  and  aid  of  his  said  wife,  and  has  suffered  great  distress 
of  body  and  mind  in  consequence  thereof,  to  his  damage  $9,300. 


No.    1003. — Complaint — Witness    vs, — Disobeying    Subpoena. 

[Title  of  Court  and  Cause.] 
The  plaintiff  complains,  and  alleges: 

1.  That  on  the  third  day  of  February,  igod.  at  P.,  the  plain- 
tiff caused  the  defendant  to  be  duly  served  with  a  subpoena  com- 
manding him  to  attend  as  a  witness  in  the  superior  court,  in 
and  for  the  county  of  Kern,  in  this  State,  on  the  fifth  day  of 
Febrrmry,  ipo6,  there  to  give  testimony  on  behalf  of  the  plaintiff 
in  an  action  in  said  court  pending,  wherein  this  plaintiff  was  the 
plaintiff,  and  one  C.  D.  was  defendant  [or  otherwise  designate 
the  proceedings.] 

2.  That  at  the  same  time  the  plaintiff  caused  $2,  the  lawful 
fees  of  the  said  witness,  to  be  paid  [or  tendered]  to  him. 

3.  That  defendant  failed  to  attend  as  commanded,  whereby 
the  defendant  became  indebted  to  the  plaintiff  in  the  amount  of 
$^00,  according  to  the  provisions  of  the  statute  [describe  the 
statute.  ] 

4.  That  by  reason  of  the  premises,  the  defendant  forfeited  to 
the  plaintiff  the  sum  of  $350. 

[If  special  damages  are  chimed,  add:}  q.  And  for  a  second 
cause  of  action  the  plaintiff  alleges  that  because  of  the  said 
failure  of  the  said  defendant  to  attend  said  trial  as  such  witness 
as  aforesaid,  the  plaintiff,  when  said  action  was  called  for  trial, 
was  compelled,  for  want  of  the  testimony  of  said  defendant,  with- 
out whose  testimony  he  could  not  safely  proceed  to  the  trial  of 
said  action,  to  move  the  said  court  to  continue  the  said  action ; 
and  said  court  did  continue  the  same,  and  the  plaintiff  was  com- 
pelled to  pay  on  said  continuance,  as  costs,  $300,  which  sum  he 
was  compelled  to  pay  by  reason  of  the  said  failure  of  said  defend- 
ant to  attend  as  such  witness  aforesaid,  to  the  damage  of  plain- 
tiff in  the  sum  of  $j00. 


598  Nkw  Book  oi<  Forms. 


CONTRIBUTION. 


No.  1004. — Contribution  by  Legatee  to  Devisee    Whose    De- 
vise has  been  Sold  to  Pay  Debts. 

[Title  of  Court  and  Cause.] 

It  appearing  that  the  said  A.  B.,  deceased,  by  his  last  will  de- 
vised to  C.  D.  all  that  real  estate  described  as  follows:  [Descrip- 
tion.] 

It  also  appearing  that  said  real  estate  is  of  the  present  mar- 
ket value  of  $6j,ooo. 

It  also  appearing  that  all  the  personal  property  belonging  to 
said  estate  has  been  sold  and  the  proceeds  used  to  pay  the  debts  of 
said  estate  and  the  expenses  of  administration. 

It  also  appearing  that  there  remains  in  the  hands  of  B.  F.,  the 
executor  of  said  will,  ^^7  J(55.^5,  in  gold  coin,  and  of  that  amount 
$3^5--5  will  be  consumed  in  closing  said  estate. 

It  also  appearing  that  the  land  above  described  has  been  sold 
by  order  of  this  court  for  the  payment  of  the  debts  and  expenses 
as  aforesaid,  and  that  all  the  said  money  now  in  the  hands  of 
said  executor  is  the  surplus  proceeds  of  said  sale. 

And  it  also  appearing  that  G.  H.  and  L.  J.,  are  the  only  residu- 
arv  legatees  or  devisees  under  said  will,  and  that  the  said  G.  H. 
and  L.  J.,  will  take,  under  said  will,  all  the  remaining  real  estate 
belonging  to  said  deceased.  And  it  also  appearing  that  said  last- 
mentioned  real  estate  is  unencumbered  and  of  the  present  mar- 
ket value  of  $365,000. 

It  is  ordered  that  all  the  aforesaid  $2^,000  remaining  on  hand 
be  distributed  to  the  said  C.  D.,  and  that  the  said  G.  H.  and  L.  J., 
each  contribute  [upon  such  terms  as  to  payment,  etc.,  as  the  said 
C.  D.,  G.  H.  and  L.  J.  may  agree  upon],  to  C.  D.,  the  sum  of 
$IQ,000  in  gold  coin,  making  $38,000  in  all. 

It  is  further  ordered  that  upon  presentation  to  this  court  of  the 
receipt  of  the  said  C.  D.  of  said  $38,000,  that  a  decree  of  dis- 
tribution of  all  that  real  estate  described  as  follows  [description], 
be  distributed  to  the  said  G.  H.  and  L.  J.,  as  tenants  in  common. 

NOTE.— California,  C.  C.  P.,  sees.  1.562-1564;  Arizona,  C.  C,  par. 
1801;  Idaho,  C.  C.  P.,  sec.  4196;  Montana,  C.  C.  P.,  sec.  2694;  Nevada, 
Comp.  Laws,  sec.  29.36;  North  Dakota,  Probate  Code,  sec.  6446;  South. 
Dakota,  Probate  Code,  sec.  227;  Washington,  Ballinger's  Codes,  sec 
6280;  Wyoming,  Eev.  Stats.,  sec.  4802. 


Controversy — Costs.  599 


COXTT^OYEKRY. 


No.  1005. — Controversy — Submission  of  Without  Action. 
[Title  of  Court  and  Cause.] 
It  is  stipulated  between  the  parties  hereto  as  follows: 
A.  B.,  the  plaintiff,  was,  on  the  first  day  of  May,  IQ06,  a  real 
estate  agent.  At  the  same  time  C.  D.,  the  defendant,  ozvned  a 
tract  of  land  in  said  county;  that  both  plaintiff  and  defendant  re- 
side in  said  county;  that  on  said  day  if  zvas  agreed  betzveen  plain- 
tiff and  defendant  that  if  plaintiff  zmthin  three  months  zvould  ffnd 
a  purchaser  zvho  zvould  pay  ten  thousand  dollars  for  said  land, 
that  defendant,  on  demand,  zvould  pay  plaintiff  five  hundred  dol- 
lars; that  on  the  third  day  of  June,  igo6,  plaintiff  found  a  pur- 
chaser, to  whom  defendant,  on  June  10,  1906,  granted  said  land 
for  ten  thousand  dollars;  that  on  the  tenth  day  of  said  month  of 
June  plaintiff  demanded  of  defendant  Hve  hundred  and  fifty  dol- 
lars, zvhich  defendant  refused  to  pay,  and  never  has  paid.  It  is 
further  stipulated  that  this  controversy  shall  be,  and  the  same  is, 
hereby  submitted  for  judgment  without  further  testimony. 

NOTE.— California,  C.  C.  P.,  sees.  1138-1140;  Alaska,  Codes,  pt.  4, 
c.  29,  sees.  248-250;  Idaho,  C.  C.  P.,  sees.  3945-3961;  North  Dakota,  C.  C. 
P.,  sees.  6131-6134;  Oregon,  Codes  and  Statutes,  sees.  41,  193-195,  199, 
413;  South  Dakota,  C.  C.  P.,  sees,  787,  789:  Utah,  Rev.  Stats.,  sees. 
3218-3220. 


COSTS. 


No.  ioo6— Costs,  Memorandimi  of. 
[Title  of  Court  and  Cause.] 

DISBURSEMENTS. 

Sheriff's  fees,  to  serzice  of  summons ^  i  2^ 

Clerk's  fees,  to  commencing  suit  and  entering  up  judgment  11  00 

Witness'  fees,  to  zvit,  J.  S.,  ofie  day 2  00 

Verification  to  complaint 30 

^^^^ $N  75 


6oo  New  Book  of  Forms, 

State  of  California, 

City  and  County  of  Son  Francisco, — ss. 

/.  C.  B.,  being  duly  yivorn,  says:  That  he  is  the  attorney  for 
the  plaintiif  in  the  above-entitled  action,  and,  as  such,  is  better  in- 
formed relative  to  the  above  costs  and  disbursements  than  the  said 
plaintiif.  That,  to  the  best  of  this  affiant's  knowledge  and  belief, 
the  items  in  the  above  memorandum  contained  are  correct,  and 
that  the  said  disbursements  have  been  necessarily  incurred  in  the 
said  action. 

NOTE. — The  party  recovering  judginciit,  who  claims  costs,  must  de- 
liver to  the  clerk,  and  serve  upon  the  adverse  party,  within  five  days 
after  the  verdict  or  notice  of  the  decision — or,  if  the  entry  of  the 
judgment  on  the  verdict  or  decision  be  stayed,  then  before  such  entry 
is  made — a  memorandum  of  the  items  of  his  costs,  verified  by  the  oath 
of  the  party,  or  agent,  or  by  the  clerk  of  his  attorney,  or  by  his  attor- 
ney, stating  that,  to  the  best  of  his  knowledge  and  belief,  the  items  are 
correct,  and  that  the  disbursements  have  been  necessarily  incurred  in 
the  action.  A  party  dissatisfied  may,  within  five  days  after  notice  of 
filing  of  the  bill,  move  to  have  the  same  taxed  by  the  court,  or  by  the 
judge  thereof  at  chambers:  C.  C.  P.,  sec.  1033;  Alaska,  Codes,  pt. 
4,  c.  52,  sees.  509-528;  Arizona,  C.  C,  pars.  1542-1559;  Idaho,  C.  C.  P., 
8CC.  3731;  Montana,  C.  C.  P.,  sec.  1867;  Nevada,  Comp.  Laws,  sec.  3581; 
Utah,  Bev.  Stats.,  sec.  3350;  Washington,  Ballinger's  Codes,  sec.  5173. 


CREDITOR'S  CLAIM. 


No.  1007. — Creditor's  Claim — Mortgage. 

[Title  of  Court  and  Estate.] 

The  undersigned,  a  creditor  of  T.  /.,  deceased,  presents  his 
claim  against  the  estate  of  said  deceased,  for  approval,  as  follows, 
to  wit: 

Estate  of  T.  J.,  Deceased, 

To  /.  S.,  Dr. 
To   principal  of   promissory   note,  dated   May  5,  IQ06, 

hereto  attached $1,000  00 

To  interest  on  same,  from  May  5,  igo6,  at  two  per  cent 

per  month,  to  this  date ^0  00 

To  cash  loaned  April  i,  igoS s^^o  00 

To  agreed  price  of  horse  sold  and  delivered  April  2g, 

i8p3 1^0  00 

$1,^00  00 


Creditor's  Ci^vim.  6oi 

\Copy  of  Promissory   Note   Attached. 1 
$1,000.  San  Francisco,  May  5,  iqoS. 

Thirty  days  after  date,  I  promise  to  pay  to  J.  S.,  or  order,  the 
sum  of  one  thousand  dollars,  with  interest  at  the  rate  of  tzuo  per 
cent  per  month,  for  7'alue  received.  T.  J. 

[If  the  claim  is  founded  on  a  recorded  mortgaj^e  the  practice 
is  to  describe  the  rate  and  mortg^age  and  then  attach  a  copy  of 
them  as  an  exhibit,  as  follows :  The  said  mortgagee  was  duly  ac- 
knowledged so  as  to  entitle  it  to  be  recorded,  and  it  was  on  the 
jrf  day  of  May,  IQ06,  duly  recorded,  in  the  office  of  the  county 
recorder  of  Fresno  county,  California,  in  book  "A"  of  Mortgages, 
at  page  137  et  scq.,  a  copy  of  which  note  and  mortgage,  with  all 
indorsements  thereon,  is  hereto  attached  and  made  a  part  of  this 
instrument  and  marked  Exhibit  "A."     See  Verification.] 

NOTE. — In  California  every  claim  -n-hieh  is  due,  when  presented 
to  the  executor  or  administrator,  must  be  supported  by  the  affidavit 
of  the  claimant,  or  some  one  in  his  behalf,  that  the  amount  is  justly 
d  e,  that  no  payments  have  been  made  thereon  which  are  not  credited, 
and  that  there  are  no  offsets  to  the  same,  to  the  knowledge  of  the 
affiant.  If  the  claim  be  not  due  when  presented,  or  be  contingent,  the 
particulars  of  such  claim  must  be  stated.  When  the  affidavit  is  made  by 
a  person  other  than  the  claimant  he  must  set  forth  the  reason  why  it 
is  not  made  by  the  claimant.  The  executor  or  administrator  may  also 
require  satisfactory  vouchers  in  support  of  the  claim:  C.  C.  P.,  sec.  1491. 

\\  nen  a  claim  is  presented  to  the  executor  or  administrator,  he  must 
ir  dorse  thereon  his  allowance  or  rejection  with  the  day  and  date  thereof. 
If  he  allow  the  claim  it  must  be  presented  to  a  judge  of  the  superior 
court  [to  whom  the  proceeding  has  been  assigned]  for  his  approval, 
who  must  in  the  same  manner  indorse  upon  it  his  allowance  or  rejection. 
If  the  executor  or  administrator,  or  the  judge,  refuse  or  neglect  to  in- 
dorse such  allowance  or  rejection  for  ten  days  after  the  claim  has  been 
presented  to  him,  such  refusal  or  neglect  may,  at  the  opinion  of  the 
claimant,  be  deemed  equivalent  to  a  rejection  on  the  tenth  day;  and  if 
the  presentation  be  made  by  a  notary,  the  certificate  of  such  notary 
under  seal  shall  be  prima  facie  evidence  of  such  presentation  and  the 
date  thereof.  If  the  claim  be  presented  to  the  excutor  or  administrator 
before  the  expiration  of  the  time  limited  for  the  prrsentation  of  claims, 
the  same  is  presented  in  time,  though  acted  upon  by  the  executor  or 
administrator  and  by  the  judge,  after  the  expiration  of  such  time:  Id., 
sec.  1496. 

Every  claim  allowed  by  the  executor  or  administrator,  and  approved 
by  a  judge  of  the  superior  court,  or  a  copy  thereof,  as  hereinafter  pro- 
vided, must,  within  thirty  days  thereafter,  be  filed  in  the  court,  and  be 
ranked  among  the  acknowledged  debts  of  the  estate,  to  be  paid  in  due 
course  of  administration.  If  the  claim  be  founded  on  a  bond,  bill,  note 
or  any  other  instrument,  a  copy  of  such  instrument  must  accompany 
the  claim,  and  the  original  instrument  must  be  exhibited,  if  demanded, 
unless  it  be  lost  or  destroyed,  in  which  ease  the  claimant  must  accom- 
pany his  claim  by  his  affidavit,  containing  a  copy  or  particular  dcscrir)- 
tion  of  such  instrument,  and  stating  its  loss  or  destruction.  If  tlie 
claim,  or  any  part  thereof,  be  secured  by  a  mortgage,  or  other  lien  which 
has  been  recorded  in  the  office  of  the  recorder  of  the  countv  in  which 
the  land  affected  by  it  lies,  it  shall  be  suffieiont  to  describe  the  mort- 
gage or  lien,  and  refer  to  the  date,  volume,  and  page  of  its  record.     If, 


6o2  New  Book  of  Forms. 

in  any  case,  the  claimant  has  loft  any  original  voucher  in  the  hands 
of  the  executor  or  adniinistrator,  or  suffered  the  sr.me  to  be  filed  in. 
court,  he  may  withdraw  the  same  when  a  copy  thereof  has  been  already, 
or  is  then,  attached  to  his  claim.  A  brief  description  of  every  claim 
filed  must  be  entered  by  the  clerk  in  the  register,  showing  the  name  of 
the  claimant,  the  amount  and  character  of  the  claim,  rate  of  interest, 
and  date  of  allowance:  Cal.  C.  C.  P.,  sec.  1497;  Alaska,  Codes,  pt.  4,  c.  84, 
sees.  820-S29;  Arizona,  C.  C,  par.  1746;  Idaho,  C.  C.  P.,  sec.  4140;  Mon- 
tana, C.  C.  P.,  sec.  2607;  New  Mexico,  Comp.  Laws,  sees.  1967,  1998- 
2000,  2062;  North  Dakota,  Probate  Code,  sees.  6399-6418;  South  Dakota, 
Probate  Code,  sees.  167-191;  Utah,  Bev.  Stats.,  sec.  3854;  Wyoming,  Bey. 
Stats.,  see.  4752. 

No.  ioo8. — Creditor's  Claim — Contingent. 
[Title  of  Court  and  Estate.] 

The  undersigned,  a  creditor  of  T.  /.,  deceased,  presents  his 
claim  against  the  estate  of  said  deceased,  for  approval  as  follows, 
to  wit : 

On  June  the  ^rst,  ipo6,  the  undersigned  and  said  deceased  en- 
tered into  an  agreement  in  writing,  as  follows: 

The  undersigned  conveyed  to  said  deceased  the  north  half  of 
section  six,  township  eight,  range  twelve  east,  M.  D.  B.  &  M., 
for  eight  dollars  per  acre,  paid  by  deceased  at  the  date  of  said 
conveyance.  At  the  same  time,  and  as  part  of  said  contract  of 
conveyance,  said  deceased  and  the  undersigned  agreed  that  if 
during  a  period  of  four  years  from  the  date  of  said  deed  said  tract 
of  land  should,  with  proper  cultivation,  net  deceased  a  profit  of 
forty  dollars  an  acre,  average  for  said  term  of  four  years,  then 
at  the  expiration  of  said  term  deceased  agreed  to  pay  the  under- 
signed ten  dollars  an  acre  for  each  acre  contained  in  said  tract. 
A  copy  of  said  conveyance  and  contract  is  hereto  attached  and 
referred  to  and  made  a  part  hereof  and  marked  Exhibit  "A." 

/.  S. 

[Affidavit]  :  The  same  as  in  creditor's  claim  down  to  the  words 
^'dollars  is  justly."  Then  add  [to  become  due  according  to  the 
contracts  in  the  foregoing  claim  described,  four  years  from  June 
I,  igo6].  That  no  payments  have  been  made  thereon  which  are 
not  credited,  and  there  are  no  offsets  to  the  same  to  the  knowl- 
edge of  said  claimant. 

NOTE. — California,  C.  C.  P.,  se^  1648;  Arizona,  C.  C,  par.  1880; 
Idaho,  C.  C.  P.,  sec.  4264;  Montana,  C.  C.  P.,  sec.  2815;  Nevada,  Comp. 
Laws,  sec.  2986;  Utah,  Bev.  Stats.,  sec.  3874;  Washington,  Ballinger's 
(Jode,  sec  6338;   Wyoming,  Bev.  Stats.,  sec.  4731. 

No.  loog. — Creditor's  Claim  by  Executor. 
[Title  of  Court  and  Estate.] 

The  undersigned,  a  creditor  of  S.  D.,  deceased,  and  the  ex- 
ecutor of  his  will,  presents  his  claim  against  the  estate  of  said  de- 
ceased, for  approval,  as  follows: 


Cri-ditor's  Claim.  603 

On  January  14,  igo2,  said  deceased  signed  and  delivered  no 
claimant  a  written  appointment  constituting  him,  said  D.,  attor- 
ney in  fact,  with  power  to  collect  and  receive  all  moneys  that 
then  or  thereafter  became  due  to  him,  said  D.,  and  to  receipt  for 
the  same ;  to  purchase  lands  in  his,  said  D.'s,  name,  and  to  mort- 
gage all  or  any  of  his,  said  D.'s,  lands  upon  such  terms  as  he,  said 
claimant,  thought  fit,  and  to  buy  and  sell  or  mortgage  all  his, 
said  D.'s,  "things  in  action,"  and  also  in  his  name  "to  make,  do 
and  transact  all  and  every  kind  of  business  of  what  nature  anrl 
kind  soever,"  and  also  for  him,  said  D.,  to  sign,  acknowledge  and 
deliver  such  bonds,  deeds,  notes,  eviflenccs  of  debt,  releases  and 
satisfactions  as  he,  said  claimant,  might  think  necessary. 

When  said  writing  was  executed  said  D.'s  health  was  bad,  and 
from  then  to  April  5,  IQ04,  when  he  died,  he  gradually  declined 
and  was,  at  one  time,  about  two  months  away  from  his  office  and 
frequently  absent  from  the  city  of  San  Francisco,  where  he  re- 
sided. Said  power  was  never  revoked,  and  at  his  request  claim- 
ant attended  to  all  deceased's  business,  when  he  was  absent,  or 
unable  because  of  his  sickness,  to  attend  to  it,  and  he  assisted 
him  in  conducting  his  business  wh-^^n  he  was  present  and  kept  a 
general  lookout  for  his  business.  During  all  of  said  time  claim- 
ant had  the  combination  to  the  office  and  safe  deposit  safes  where 
all  deceased's  money  and  securities  were  kept,  and  during  his 
last  sickness  claimant  had  the  exclusive  possession  and  manage- 
ment of  all  of  his  property  under  said  power.  That  the  neg-o- 
tinble  seairities  and  monev  of  deceased's  that  claimant  was  in- 
trusted with  and  responsible  for  under  said  power,  was  of  the 
vnlue  everv^  day,  during  all  said  time  of  about  ^T.pno.ooo.  That 
said  services  were  reasonably  worth  ,"^.^<o  a  month  during  all  the 
time  from  January  14,  IQ02,  until  April  4,  1004. 

The  original  power  hereinabove  referred  to  is  hereunto  an- 
nexed and  made  a  part  hereof. 

Wherefore,  claimant  presents  this  his  said  claim  for  $6,625. 

NOTE. — Tti  this  finss  of  rlomaTids,  if  the  .iurl^e  roippts  the  olaim, 
action  thereon  mny  be  had  njjainst  the  estate.  The  siimTnona  is  served 
on  the  .iiirlcro,  who  inay  anpoint  an  attorney,  at  the  expense  of  the  estate 
to  defend  the  action.  If  the  exeeutor  dors  not  reeover  ho  must  par 
fosta  and  attornovs'  fpos.  to  be  fixed  by  the  court:  C.  C.  P..  spc.  I.tIO 
If  he  recovers  judgment  it  is  only  vriwa  farie  a  debt  against  the  estate 
which  may  be  shown  by  parol  testimony  to  have  been  not  authorized 
by  either  law,  or  facts,  or  both.  This'  is  true  of  all  claims,  and  all 
judijments  recovered  on  rejected  claims  by  either  a  judge  or'  adminis- 
trator, or  both.  There  are  other  authorities,  but  Estate  of  Moore,  121 
CaJ.  63(1,  is  in  point:  Alaska,  Codes,  pt.  4,  c.  ,84.  sec.  '?20;  Arizona  C  C 
par.  1759:  Idaho,  C.  C.  P.,  sec.  41f52;  Montana,  C.  c'.  P.,  sec'  2fi''o' 
Nevada,  Comp.  Lavra,  sec.  2906;  North  Dakota,  Probate  Code,  sec.  6415* 
Oregon,  Codes  and  .Statutes,  sees.  1166.  1167;  South  Dakota  Probate 
Code.  sec.  188;  Utah,  Rev.  Stats.,  sec.  .3866;  Washington,  Ballingw'a 
Codes,  sec.  6243;  Wyoming,  Be  v.  Stata.,  sec  4765. 


6o4  New  Book  of  Forms. 


No.  loio.— Creditor's  Claim— Judge  Appoints  Attorney  to  De- 
fend Action  to  Recover. 

[Title  of  Court  and  Estate.] 

The  claim  of  /.  C.  R.,  executor  of  the  will  of  S.  D.  deceased, 
having  been  rejected  by  the  judge  of  said  court,  and  action  thereon 
having  been  commenced  against  said  estate,  and  summons  hav- 
ing on  the  3d  day  of  June,  ipo6,  been  served  upon  the  said  judge, 
it  is  ordered  that  C.  D.,  an  attorney  at  law,  be,  and  he  is,  ap- 
pointed to  defend  said  action  at  the  expense  of  said  estate. 

NOTE,— California,  C.  C.  P.,  sec.  1510.     See  note  to  form  No.  1009. 


No.  ion. — Creditor's  Claim — Not  Due. 

[Title  of  Court  and  Estate.] 

The  undersigned,  a  creditor  of  T.  J.,  deceased,  presents  his 
claim  against  the  estate  of  said  deceased  for  approval,  to  wit: 

Estate  of  T.  /.,  deceased. 

To  /.  S.,  Dr. 
To  principal  of  promissory  note,  dated  May  5,  ipo6, 

hereto  attached   $1,000  00 

To  interest  on  same,  from  May  5,  ipo6,  at  two  per  cent     . 
per  month  to  this  date  [which  note  is  in  the  tvords 
and  figures  as  follows] 30  00 

$1,030,00 

tj  000.  S^'^  Francisco,  May  5,  IQ06. 

Three  years  after  date,  J  promise  to  pay  to  J.  S.,  or  order,  the 
sum  of  one  thousand  dollars,  with  interes't  at  the  rate  of  tTvn  per 
cent  per  month,  for  value  received.  i  ■  J- 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

/.  S.,  whose  foregoing  claim  is  herewith  presented  to  the  ad- 
ministratrix of  the  estate  of  said  deceased,  being  duly  sworn,  says 
that  the  amount  thereof,  to  wit,  the  sum  of  one  thousand  dollars, 
with  accruing  interest  at  the  rate  of  two  per  cent  per  month,  on 
the  sum  of  one  thousand  dollars,  is  justly  due  to  said  claimant, 
but  is  not  payable  until  the  expiration  of  three  years  from  Mav 
5  igo6;  that  no  pavments  have  been  made  thereon  which  are  not 
credited,  and  that  there  are  no  offsets  to  the  same,  to  the  knowl- 
edge of  said  claimant. 


Creditor's  Claim.  605 

NOTE.— California,  C.  C.  P.,  soc.  1648;  Alaska,  Codes,  pt.  4,  c.  84, 
sees.  820-829;  Arizona,  C.  C,  par.  1880;  Idaho,  C.  C.  P.,  sec.  4264;  Mon- 
tana, C.  C.  P.,  sec.  2815;  Nevada,  Comp.  Laws,  sec.  2986;  North  Dakota, 
Probate  Code,  sec.  6402;  South  Dakota,  Probate  Code,  sec.  170;  Utah, 
Eev.  Stats.,  sec.  3874;  Washington,  Ballinger's  Codes,  sec.  6338;  Wyo- 
ming, liev.  Stats.,  see.  4731. 


No.  I0I2. — Creditor's  Claim — Action  Pending. 
[Title  of  Court  and  Estate.] 

/.  B.  presents  this  claim  against  the  estate  of  7.  S.,  deceased,  as 
follows : 

That  at  the  time  of  the  death  of  said  /.  S.  an  action  was  pend- 
ing, brought  by  this  affiant  against  said  deceased  in  the  superior 
court  of  the  city  and  county  of  San  Francisco,  to  recover  $i,ooo, 
money  had  and  received  by  the  said  /.  S.  for  the  benefit  of  this 
affiant.  That  said  case  was  at  issue  at  the  time  of  the  death  o^ 
said  decedent,  and  is  now  ready  for  trial  in  said  court.  Case  No. 
10,173.  Department  No.  12  of  said  court.  [A  copy  of  the  com- 
plaint in  said  action  ougJit  to  be  set  out  in  the  claim.  If  not  then 
the  facts  upon  which  the  claim  is  based  must  be  inserted.] 

NOTE.— California,  C.  C.  P.,  sec.  1502;  Alaska,  Codes,  pt.  4,  c.  84, 
sees.  820-829;  Arizona,  C.  C,  par.  1751;  Idaho,  C.  C.  P.,  sec.  4191;  Mon- 
tana, C.  C.  P.,  sec.  2612;  Nevada,  Comp.  Laws,  sec.  2901;  North  Dakota, 
Probate  Code,  sec.  6409;  South  Dakota,  Probate  Code,  sec.  180;  Utah, 
Rev.  Stats.,  sec.  3860;  Washington,  Ballinger's  Codes,  sec  6237;  Wyo- 
ming, Eev.  Stats.,  sec  4757. 


No.  1013. — Creditor's  Claim — Judgments. 
[Title  of  Court  and  Estate.] 

The  undersigned,  A.  S.,  a.  creditor  of  7.  W.,  deceased,  presents 
his  claim  against  the  estate  of  said  deceased  for  approval,  as  fol- 
lows, to  wit : 

[Here  iiiscrt  a  certified  copy  of  the  judgment  in  the  action — 
not  a  copy  of  the  docket,  but  the  judgment,  if  under  the  practice 
one  is  made  in  the  case.] 

NOTE. — A  judgment  against  the  decedent  must  be  presented  to  the 
executor  or  administrator,  like  [the  same  as — in  the  same  manner! 
any  other  claim:  Cal.  C.  C.  P.,  sec.  1505. 

In  California  it  is  not  practicable  to  present  the  judgment  because 
practically  it  is  difficult  to  take  hold  of  a  judgment,  it  bcing'the  final 
[words]  determination  of  the  rights  of  the  parties  to  an  action:  Id. 
sec  577.  The  legal  conclusion  deducted  from  the  words  of  the  foreman 
of  a  jury  or  judge  are  entered  by  the  clerk  in  a  book  (Id.,  sec.  661), 
and  when  so  entered  become  the  judgment.  It  is  manifest  tliat  they 
cannot  be  presented,  therefore  the  next  best  thing  is  a  copy  of  the  en- 
try:   Alaska,   Codes,   pt.   4,   c   84,   sec   825;    Ajizona,   C.    O,   par.    1754; 


6o6  New  Book  of  Forms. 

Idaho,  C.  C.  p..  Peo.  4151;  Montana,  C.  C.  P.,  sec  2R15;  Nevada,  Comp. 
Laws.  sec.  2904;  North  Dakota,  Probate  Code,  sec.  6410;  Oregon,  Codes 
and  Statutes,  sec.  1163;  South  Dakota,  Probate  Code,  sec.  18.3;  Utah, 
Her.  Stats.,  sec.  3863;  Washington,  Ballinger's  Codes,  sec  6240;  Wyo- 
ming, liev.  Stats^  sec.  4760. 


No.  1014. — Creditor's  Claim — Lost  Promissory  Note. 
"[Title  of  Court  and  Estate.] 

[The  same  form  as  if  the  promissory  note  had  not  been  lost; 
then  continue :] 

That  on  June  j,  1903,  the  said  promissory  note  was  in  a  book 
in  the  vest  pocket  of  claimant,  and  on  said  day  said  vest  and 
book  and  note  were  accidentally  destroyed,  by  fire,  which  con- 
sumed claimant's  residence  in  Oakland,  Alameda  county,  Califor- 
nia. 

State  of  Calif orma, 
County  of  Alameda, — ss. 

A.  B.,  being  duly  sworn,  says  that  he  is  the  A.  B.  who  presents 
the  aforesaid  claim.  That  said  promissory  note  was  destroyed  as 
is  stated  in  the  said  claim.  That  the  claim  contains  a  copy  of  the 
note  destroyed  as  aforesaid.  That  all  the  particulars  in  said 
claim  relating  to  the  destruction  of  said  note  are  true.  That  the 
amount  of  said  claim  is  justly  due,  that  no  payments  have  been 
made  thereon  which  are  not  credited,  and  that  there  are  no  offsets 
to  the  same  to  the  knowledge  of  claimant. 

NOTE.— California,  C.  C.  P.,  see.  1497;  Arizona,  C.  C,  par.  1746; 
Idaho,  C.  C.  P.,  sec.  4140;  Montana,  C.  C.  P.,  sec.  2607;  North  Dakota, 
Probate  Code,  sec.  6406;  South  Dakota,  Probate  Code,  see.  175;  Utah, 
Rev.  Stats.,   sec.   3854;   Wjoming,  Bev.   Stats.,   see.  4752. 


No.  1015. — Creditor's  Claim — Lost  Instrument. 

[Title  of  Court  and  Estate.] 

/.  B.  presents  his  claim  against  the  estate  of  J.  S.,  deceased, 
as  follows : 

On  June  10,  igoo,  the  said  deceased,  for  a  valuable  considera- 
tion, made,  executed,  and  deHvered  to  this  claimant  his  certain 
promissory  note,  in  words  and  figures  as  follows:  [Copy  of  note.] 

That  there  is  now  due  on  said  note  [here  state  the  amount  due 
as  m  form  No.  1007.] 

That  on  June  jo,  i()o6,  the  said  note  was  in  affiant's  coat 
pocket,  in  his  room  at  the  Church  Street  Hotel,  Sacramento,  Cali- 
fornia. That  on  June  jo,  /pod,  said  hotel  was  destroyed  by  fire 
i.nd  said  note  was  at  the  same  time  destroyed  by  fire. 


Creditor's  Claim,  607 

NOTE.— California,  C.  C.  P.,  sec.  1497;  Arizona,  C.  C,  par.  1746; 
Idaho,  C.  C.  P.,  sec.  4140;  Montana,  C.  C.  P.,  sec.  2607;  North  Dakota' 
PVobate  Code,  sec.  6406;  South  Dakota,  Probate  Code,  sec  175;  Utali, 
Bev.  Stats.,  sec.  3854;  Wyoming,  Eev.  Stata.,  sec.  4752. 


No.    ioi6. — Creditor's   Claim — Demand  for   Vouchers  by  Ex- 
ecutor. 

[Title  of  Court  and  Estate.] 
To  A.  B.,  Claimant : 

Yoii  will  please  take  notice  that  the  undersigned,  executor  of 
the  will  of  S.  D.,  deceased,  requires  you  to  present  to  him  at  his 
place  of  business  No.  /j  Clay  street,  San  Francisco,  California, 
on  or  before  June  5,  7905,  the  voucher  [contract],  upon  which 
you  base  your  claim  against  said  estate  for  $3,i2j.^o.  Also  to 
make  proofs  of  said  demand. 

NOTE. — The  executor  may  require  satisfactory  vouchers,  or  proofs 
to  be  produced  in  support  of  the  claim:  Cal.  C.  C.  P.,  sec.  1494. 

If  such  demand  is  made  for  vouchers  and  proofs  within  a  reasonable 
time,  to  be  stated  in  the  demand,  the  claimant  is  bound  to  produce  them. 
When  they  are  produced,  if  the  administrator  is  in  doubt,  the  matter 
may  be  referred  to  a  referee.  The  findings  of  the  referee,  if  approved 
by  the  court,  are  final:  C.  C.  P.,  sec.  1508;  but  if  the  administrator 
docs  not  demand  vouchers  and  proofs  rendered  (Id.,  sec.  1494),  but 
re.iects  the  claim,  and  if  a  judgment  is  recovered  upon  it,  he  is  person- 
ally liable  for  costs,  because  he  defended  the  case  without  just  cause — 
that  is  to  say,  because  he  did  not  demand  proofs:  Id.,  sec.  1509. 

It  was  clearly  the  intention  of  the  legislature  that  the  administrator 
should  have  the  right  to  demand  proofs  before  he  formed  bis  opinion 
as  to  the  legality  of  a  creditor's  claim,  and  unless  the  claimant  pro- 
duced his  vouchers  and  proves  his  claim,  he  could  not  recover  judgment, 
jected,  the  administrator  must  personally  pa}'  costs  because  he  did  not 
demand  vouchers  and  proofs.  If  he  did  demand  vouchers  and  proofs 
mand  vouchers  and  proofs.  If  he  did  demand  vouchers  and  proofs 
which  were  not  supplied,  the  claimant  ought  not  to  recover  because  ho 
did  not  respond  to  the  administrator's  demand.  This  view  seems  to  b(? 
reasonable,  because  it  will  be  presumed  that  the  legislature  intended 
to  prevent  litigation  by  permitting  the  demand  for  proofs  to  be  niaiJe, 
and  the  penalty  seems  to  be  the  defeat  of  the  creditor's  claim:  Arizona, 
C.  C,  pars.  174.^,  1757;  Idaho,  C.  C.  P.,  sees.  4137,  4148;  Montana,  C.  c' 
P.,  sees.  2604,  2618;  Nevada,  Comp.  Laws.  sec.  2894;  North  Dakota.  Pro- 
bate Code.  sec.  6402:  Oregon,  Codes  and  Statutes,  sees.  1160,  1165;  South 
Dakota,  Probate  Code,  sec.  171;  Utah,  Rev.  Stats.,  sec.  3852;  Washing- 
ton, Ballingcr's  Codes,  sees.  6229,  6242;  Wyoming,  Rev.  Stats.,  sees 
4750,  4763. 

No.    1017. — Creditor's    Claim    Allowed — Claimant  cannot  be 
Found — Order. 

[Title  of  Court  and  Estate.] 

It  appearing  to  the  court  that  A.  B.,  presented  his  claim  to  the 
executor  of  the  last  will  of  said  deceased,  which  claim  was  allowed 
and  approved  by  him  and  by  this  court,  and  it  has  not  been  paid, 


6o8  New  Book  of  Forms. 

?nd  said  estate  is  ready  to  be  closed,  but  cannot  be  because  said 
claimant  cannot  be  found ;  It  is  tlierefore  ordered  that  the  amount 
of  said  claim,  including  interest,  is,  at  the  date  of  this  order, 
$1,972.33  in  g-old  coin;  and  said  executor  is  ordered  to  deposit 
said  amount  with  the  county  treasurer  of  the  city  and  county  of 
San  Francisco,  to  the  credit  of  the  said  C.  D. 

NOTE. — Such  order  may  be  made  under  the  circumstances  set  forth. 
If  claimed,  the  deposit  wiU  be  paid  by  the  treasurer  to  the  claimant 
within  five  years  after  such  deposit.  If  not  claimed  within  five  years 
it  escheats  to  the  state:  Cal.  a  C.  P.,  sec  1514;  North  Dakota,  Probate 
Code,  sees.  6160-6617. 


No.   1018. — Creditor's  Claim — Affidavit  of  Claimant  that  He 
had  No  Notice  of  Publication  of  Notice  to  Creditors. 

[Title  of  Court  and  Estate.] 

[Make  out  the  creditor's  claim  in  the  usual  form  and  conclude 
as  follows :] 

That  the  person  whose  claim  is  hereinabove  set  forth  is  a  cor- 
poration organized  and  doing  business  under  the  laws  of  the 
state  of  New  York  and  its  principal  place  of  business  is  in  Roches- 
ter, Monroe  county,  in  said  state.  That  it  has  never  had  an  agent 
in  the  state  of  California.  That  the  debt  hereinabove  described 
was  contracted  by  said  deceased  at  claimant's  said  place  of  busi- 
ness. That  claimant  had  no  notice  of  the  time  and  place  for  the 
presentation  of  its  claim  by  reason  of  its  being  out  of  the  state 
of  California.  That  the  amount  of  its  claim,  to  wit,  the  sum  of 
$2,^73.30,  is  justly  due  the  claimant;  that  no  payments  have  been 
made  thereon  which  are  not  credited,  and  that  there  are  no  offsets 
to  the  same  to  the  knowledge  of  said  affiant. 

NOTE. — California,  C.  C.  P.,  see.  1493.  The  notice  to  creditor  is  di- 
rected to  "all  persons":  Id.,  sec.  1490.  A  corporation  is  a  person:  Id., 
sec  17:  Alaska,  Codes,  pt.  4,  c.  84,  sees.  821,  822;  Arizona,  C.  C,  par. 
1742-  Idaho,  C.  C.  P.,  sec.  4136;  Montana,  C.  C.  P.,  sec.  2603;  Nevada, 
Comp.  Laws,  sec.  2896;  North  Dakota,  Probate  Code,  sec.  6401;  Oregon, 
Codes  and  Statutes,  sec.  1159;  South  Dakota,  Probate  Code,  sec.  170; 
Utah,  Rev.  Stats.,  sec.  3851;  Washington,  Ballinger'a  Codes,  sec.  6228; 
Wyoming,  Kev.  Stats.,  sec.  4749. 


No.  1019. — Claim,  Reference  of. 

[Title  of  Court  and  Estate.] 

Whereas,  the  undersigned  administrator  of  said  estate  doubts 
the  correctness  of  the  claim  of  /.  B.  for  $1,372.23,  presented  as  a 
claim  against  said  estate  on  June  p,  ipo6;  nozv  it  is  agreed  that 
said  matter  in  dispute,  the  claim  aforesaid,  may  be  referred  to 


Creditor's  Claim.  609 

H.  S.,  Esq.,  [the  judge  of  said  court  approving],  for  investiga- 
tion and  a  report  either  allowing  or  rejecting  said  claim,  or  any 
part  thereof  if  said  claim  is  incorrect. 

NOTE. — If  [the  executor  or  administrator  doubts  the  correctness  of 
any  claim,  he  may  agree  in  writing  with  the  claimant  to  refer  the 
matter  to  some  disinterested  person,  to  be  approved  by  the  court.  Upon 
filing  the  agreement  and  approval  in  the  office  of  the  clerk,  the  clerk 
enters  a  minute  of  the  order  referring  the  matter  to  the  person  selected], 
or,  if  the  parties  consent,  a  reference  may  be  had  in  the  court;  and  the 
report  of  the  referee,  if  confirmed,  establishes  or  rejects  the  claim  the 
same  as  if  it  had  been  allowed  or  rejected  by  the  executor,  or  adminis- 
trator and  judge:  Cal.  C.  C.  P.,  sees.  1507,  1508;  Alaska,  Codes,  pt.  4, 
c.  84,  sec.  826;  Arizona,  C.  C,  pars.  1756,  1757;  Idaho,  C.  C.  P.,  sees. 
4147,  4148;  Montana,  C.  C.  P.,  sees.  2617,  2618;  North  Dakota,  Probate 
Code,  sees.  6412,  6413;  Oregon,  Codes  and  Statutes,  sees.  1164,  1165; 
South  Dakota,  Probate  Code,  sees.  185,  186;  Utah,  Rev.  Stats.,  see.  3864; 
Wiishirsrton.  Ballinger'a  Codes,  sec  6241,  6242;  Wyoming,  Eev.  Stats^ 
Hecs.  4762,  4763. 


No.  1020. — Creditor's  Claim — Report  of  Referee 
[Title  of  Court  and  Estate,] 

To  the  Honorable,  the  Judge  of  the  Superior  Court  of  the  County 
of  Nevada; 
The  undersigned,  referee,  to  whom  was  referred  a  controversy 
between  A.  B.,  the  administrator  of  the  above-entitled  estate,  and 
C.  D.,  a  creditor  thereof  to  take  evidence  and  report  upon  the 
facts  respecting  the  liability  of  said  estate  in  respect  to  said  claim, 
begs  leave  to  report  that  he  has  perfonned  that  duty,  and  he  finds, 
as  a  matter  of  fact,  that  said  deceased  and  said  C.  D.  made  the 
contract  in  words  and  figures  as  is  in  said  claim  stated.  That  all 
the  matters  stated  in  said  claim  and  in  the  verification  thereof  are 
true. 

NOTE.— California,  C.  C.  P.,  sec.  1507;  Alaska,  Codes,  pt.  4,  c.  84, 
sec.  827;  Arizona,  C.  C,  par.  1756;  Idaho,  C.  C.  P.,  sec.  4147;  Montana, 
C.  C.  P.,  sec.  2617;  North  Dakota,  Probate  Code,  sec.  6413;  Oregon,  Codes 
and  Statutes,  sec.  1164;  South  Dakota,  Probate  Code,  sec.  186;  Utah, 
Rev.  Stats.,  sec.  3864;  Washington,  Ballinger's  Codes,  sec  6241;  Wyo- 
ming, Rev.  Stats.,  sec.  4762. 


No,   1021, — Creditor's  Claim — Notary's  Certificate. 
[Title  of  Court  and  Estate.] 

I,  /.  V.  M.,  a  notary  public,  in  and  for  the  city  and  county  of 
San  Francisco,  state  of  California,  hereby  certify  that  on  the  fifth 
day  of  May,  igo6,  at  said  city  and  county,  I  presented  the  claim 
of  A.  B.  against  theestate  of  C.  L.,  deceased,  to  E.  F.,  executor  of 
said  estate,  at  the  place  stated  in  the  notice  to  creditors  published 
New  Forms — 39 


6io  New  Book  of  Forms. 

in  said  estate.  That  the  said  executor  then  and  there  took  said 
claim  into  his  possession  from  my  hands,  read  the  same  and  re- 
tained said  possession.  I  further  certify  that  before  presentin.2: 
said  claim  I  made  a  correct  copy  thereof,  and  said  copy  is  attached 
to  this  certificate  and  made  a  part  of  this  certificate.  [Any  other 
facts  may  be  stated,  such  as  destruction  of  the  claim  by  the  execu- 
tor, or  refusal  to  receive  it,  or  receiving  it  and  returning  it  to  the 
notary.] 

NOTE.— California,  C.  C.  P.,  sec.  1496;  Arizona,  C.  C,  par.  1745; 
Idaho,  C.  C.  P.,  see.  4139;  Montana,  C.  C.  P.,  sec.  2606;  Nevada,  Comp. 
Laws,  sec.  2S96;  North  Dakota,  Probate  Code,  sec.  6405;  Oregon,  Codes 
and  Statutes,  sec.  1161;  South  Dakota,  Probate  Code,  sec.  174;  Utah, 
Eev.  Stats.,  sec.  3853;  Washington,  BaUinger's  Codes,  sec.  2630;  Wyo- 
ming, Rev.  Stats.,  see.  4751. 

No.    1022. — Creditor's   Claim — Presentation  by   Notary — Cer- 
tificate of. 

[Title  of  Court  and  Estate.] 

State  of  California, 
County  of  Yuba,— ss. 

I  hereby  certify  that  on  the  jrf  day  of  June,  A.  D.  1905,  T  pre- 
sented to  /.  C.  R.,  executor  of  the  will  of  S.  D.,  deceased,  and  left 
in  his  possession  the  claim  of  CD.  (a  copy  of  which  is  to  this  cer- 
tificate attached)  for  $27,397.^3.  Said  presentation  was  made  at 
room  No.  72,  of  220  Montgomery  street,  San  Francisco,  Califor- 
nia, the  said  place  being  the  place  for  the  transaction  of  the  busi- 
ness of  said  estate  in  said  city  and  county  designated  in  the  pub- 
lished notice  to  the  creditors  of  said  estate.  I  further  certify  that 
the  said  paper,  to  which  this  certificate  is  attached,  is  a  copy  of  the 
said  claim  so  presented  by  me. 

NOTE. — The  certificate  must  be  under  the  sea!  of  the  notary  public. 
It  is  in  all  subsequent  proceedings  prima  facie  evidence  of  such  presen- 
tation, and  the  date  thereof:  Cal.  C.  C.  P.,  sec.  1496;  Arizona,  C.  C, 
par.  1745;  Idaho,  C.  C.  P.,  sec.  4139;  Montana,  C.  C.  P.,  sec.  2606; 
Nevada,  Comp.  Laws,  sec.  2896;  North  Dakota,  Probate  Code,  sec.  6405; 
Oregon,  Codes  and  Statutes,  see.  1161;  South  Dakota,  Probate  Code, 
sec.  174;  Utah,  Rev.  Stats.,  sec.  3853;  Washington,  BaUinger's  Codes, 
sec.  2630;  Wyoming,  Rev.  Stats.,  sec.  4751. 


No.  1023. — Claims  Presented,  Statement  of. 

[Title  of  Court  and  Estate.] 

The  undersigned,  administratrix  of  the  estate  of  T.  /.,  deceased, 
at  this,  the  July  term, /pod,  of  said  superior  court,  returns  to  said 
court  the  following  statement  of  all  claims  against  the  said  estate 
which  have  been  presented  to  her  since  the  eighteenth  day  of  May, 


Creditor's  Claim — Decree. 


6ii 


igo6,  being  the  date  of  the  first  publication  of  notice  to  creditors 
[or,  if  the  statement  be  not  the  first  returned,  then  say,  beins;  the 
date  of  the  return  of  the  last  statement],  in  which  statement  are 
designated  the  names  of  the  creditors,  the  nature  of  each  claim, 
when  it  became  due,  or  will  become  due,  and  whether  it  was  al- 
lowed or  rejected  by  said  administratrix. 


Name 

of 

Creditor. 

Nature  of  Claim, 

When  Due. 

Allowed 

or 
Rejected 

Amt. 

JS             \ 

J.  s.,        1 
6.  r.. 

Dr.    C.  6.  B.. 

A.  r., 

D.  P.  B., 

Promlssori)  note, 
Mone-j  loaned, 
And  horse  sold, 
Funeral  expenses. 
Expenses  ot  last  sickness, 
Balance  oi  account, 
Legal  services. 

June         5,  1906. 
April         1.  1906. 
April     29,  1906. 
Ma:j        19.  1906. 
Mag        18,  1906. 
March      3,  1906. 
January  5,  1906. 

Allowed 

Allowed 
A  Honed 
Allowed 
Rejected 

$  1,500 

200 

250 

500 
100 

$2,550 

NOTE. — At  the  same  time  at  which  he  is  requirrd  to  return  his 
inventory,  the  executor  or  administrator  must  also  return  a  statement 
of  all  claims  against  the  estate  which  have  been  presented  to  him,  if 
so  required  by  the  court,  or  a  judge  thereof,  and  from  time  to  time  there- 
after he  must  present  a  statement  of  claims  subsequently  presented  to 
him,  if  so  required  by  the  court  or  a  judge  thereof.  In  all  such  state- 
ments he  must  designate  the  names  of  the  creditors,  the  nature  of  each 
claim,  when  it  became  due  or  will  become  due,  and  whether  it  was  al- 
lowed or  rejected  by  him:  Cal.  C.  C.  P.,  sec.  1512;  Alaska,  Codes,  pt. 
4,  c.  86,  sec.  859;  Arizona,  C.  C,  par.  1761;  Idaho,  C.  C.  P.,  sec.  4154; 
Montana,  C.  C.  P.,  sec.  2622;  Nevada,  Comp.  Laws,  sec.  2908;  New 
Mexico.  Comp.  Laws,  sees.  1967,  1998-2000,  2062;  North  Dakota,  Probate 
Code.  sec.  6417;  South  Dakota,  Probate  Code,  sec.  190;  Utah,  Rev.  Stats., 
Bcc.  3867;  Washington,  Ballinger's  Codes,  sec.  6245;  Wyoming,  Bev, 
Stats.,  see.  4766. 


DECREE. 


No.   1024. — Decree,   Notice  to   Creditors   Shown. 
[Title  of  Court  and  Estate.] 

It  appearing:  to  the  satisfaction  of  this  court  that  due  and  legul 
notice  to  the  creditors  of  said  estate  has  been  given : 

It  is  hereby  ordered,  adjudg-cd,  and  decreed  that  legal  notice  to 
the  creditors  of  said  T.  J.,  deceased,  has  been  given ;  that  the  same 
is  established  of  record,  and  that  this  decree  be  entered  in  the  min- 
utes of  this  court  and  recorded. 


5j2  Nkw  V.ook  or  FouMS. 

XOTE— After  publication  of  notice  to  creditors  is  given,  as  reqiured 
bv  law  a  copv  thereof,  with  the  affidavit  of  publication,  or  of  publica- 
tion and  posting,  must  be  filed,  and  upon  such  affidavit  or  other  testimony 
to  the  satisfaction  of  the  court,  an  order  or  decree  showing  that  due 
notice  to  creditors  has  been  given,  and  directing  that  such  order  or 
decree  be  entered  in  the  minutes  and  recorded,  must  be  made  by  the 
court:  Cal.  C.  C.  P.,  sec.  1492;  Alaska,  Codes,  pt.  4,  c.  84,  sees.  820-829; 
Arizona,  C.  C,  par.  1741;  Idaho,  C.  C.  P.,  sec.  4135;  Montana,  C.  C.  P., 
s  2602-  North  Dakota,  Probate  Code,  sec.  6400;  South  Dakota,  Pro- 
bate Code,  sec.  169;  Utah,  Eev.  Stats.  2350;  Washington,  Ballinger's 
Codes,  sec.  6227;  "Wyoming,  Eev,  Stats.,  sec.  4748. 


No.  1025. — Decree — Account,  Settlement  of. 

[Title  of  Court  and  Estate.] 

M.  J.,  the  administratrix  of  the  estate  of  T.  J.,  deceased,  hav- 
ing, on  the  sixteenth  day  of  June,  igo6,  rendered  and  presented 
for  settlement  and  filed  in  this  court,  her  annual  account  of  her 
administration    of   said   estate,    and  afterward,    to  wit,    on   the 
eleventh  day  of  July,  igo6,  the  said  matter  coming  on  regularly  to 
be  heard,  and  proof  having  been  made  to  the  satisfaction  of  this 
court  that  notice  of  settlement  of  said  account  and  of  the  time  and 
place  of  hearing  the  same  had  been  duly  given  by  the  clerk  as  re- 
ouired  by  law  and  the  order  of  this  court.     Now,  on  this  the  day 
last  aforesaid,  being  a  day  of  the  July  term,  1906,  of  this  court,  the 
referee,  G.  B.  M.,  Esq.,  Imving  returned  and  Med  his  report,  and 
no  exceptions  hazing  been  mode  or  Hied,  and  it  duly  appearmg  to 
this  court  that  the  said  referee  has  fully  examined  the  said  account 
and  the  vouchers  produced  in  support  thereof,  and  that  no  person 
appeared  to  contest  the  same,  and  that  jw  exceptions  or  objections 
zvere  filed  or  made  before  said  referee  to  said  account,  or  any  part 
thereof;  that  said  account  contains  a  just  and  full  account  of  all 
the  moneys  received  and  disbursed  by  said  administratrix,  from 
the  commencement  of  her  administration  of  said  estate  to  the 
sixteenth  day  of  June,  IQ06;  that  all  necessary  and  proper  vouch- 
ers were  produced  and  duly  filed  herein  ; 
That  the  total  amount  received  by  said  administratrix, 

as  such  is , $7JjS  00 

And   the   full   amount  expended i  ,369  5^ 

Leaving  a  balance $5795  5° 

And  that  the  said  account  is  entitled  to  be  allowed  and  approved ; 
and  the  court  having  duly  considered  said  report  and  the  matters 
aforesaid: 

It  is  ordered  and  decreed,  that  the  said  account  be,  and  the  same 
hereby  is,  in  all  respects  as  the  same  was  rendered  and  presented 
for  settlement,  approved,  allowed,  and  settled. 

Done  in  open  court. 


Decree.  613 

tTOTE. — The  accounts  of  administrators  and  executors  arc  nrvrr  al- 
lowed until  it  is  proved  that  notice  of  the  time  and  place  of  hearing  and 
settlement  of  the  account  has  been  given  as  required  by  law,  and  the 
decree  settling  the  account  must  show  that  such  proof  was  made  to 
the  satisfaction  of  the  court,  and  the  decree  is  conclusive  evidence  of 
the  fact.  [That  notice  was  given.]  Cal.  C.  C.  P.,  sec.  16.38;  Alaska 
>.  odes,  pt.  4,  c.  86,  sec.  864;  Arizona,  C.  C,  par.  1872;  Idaho,  C.  C.  P., 
sec.  4258;  Montana,  C.  C.  P.,  sec.  2796;  Nevada,  Comp.  Laws,  sec. 
2978;  North  Dakota,  Probate  Code,  sees.  G495-650U;  Oregon,  Codes  and 
Statutes,  sec.  121U;  South  Dakota,  Probate  Code,  sees.  2S2-29L»j  Wash- 
ington, Ballinger  's  Codes,  sec.  6332. 


No.   1026. — Decree — Account,  Settlement  and  Distribution. 

[Title  of  Court  and  Estate.] 

R.  D.,  executor  of  the  last  will  of  JV.  H.  L.,  deceased,  having 
on  the  sixteenth  day  of  June,  igo6,  rendered  and  filed  herein  a 
full  account  and  report  of  his  administration  of  said  estate,  which 
account  was  for  a  final  settlement,  and  having  with  said  account 
filed  a  petition  for  the  final  distribution  of  the  estate; 

And  the  said  account  and  petition  this  day  coming  on  regularly 
to  be  heard,  proof  having  been  made  to  the  satisfaction  of  the 
court  that  the  clerk  had  given  notice  of  the  settlement  of  said 
account,  and  the  hearing  of  said  petition,  in  the  manner  and  for 
the  time  heretofore  ordered  and  directed  by  the  court ; 

And  it  appearing  that  said  account  is  in  all  respects  true  and 
correct,  and  that  it  is  supported  by  proper  vouchers ;  that  the  res- 
idue of  money  in  the  hands  of  the  executor,  at  the  time  of  filing 
said  account  was  one  thousand  dollars;  that  since  the  rendition 
of  said  account  there  has  been  received  by  the  said  executor  tl%e 
sum  of  five  hundred  dollars ;  that  the  sum  of  Hve  hundred  dollars 
has  been  expended  by  him  as  necessar}'  expenses  of  administra- 
tion, the  vouchers  whereof,  together  with  a  statement  of  such  ex- 
penses and  disbursements,  are  now  presented  and  filed,  and  said 
f^tatcment  is  now  settled  and  allowed,  and  the  payments  are  ap- 
proved by  this  court ;  that  the  estimated  expenses  of  closing  the 
estate  will  amount  to  one  hundred  dollars,  leaving  a  residue  of 
nine  hundred  dollars;  and  it  appearing  that  all  claims  and  debts 
r.gainst  said  decedent,  all  taxes  on  said  estate,  and  all  debts,  ex- 
penses, and  charges  of  administration  have  been  fully  paid  and 
discharged,  and  that  said  estate  is  ready  for  distribution,  and  in 
condition  to  be  closed  ; 

It  is  further  ordered,  adjt^.dgcd,  and  decreed,  that  the  said  final 
accounts  of  the  said  executor  be,  and  the  same  are,  settled,  al- 
lowed, and  approved,  and  that  the  residue  of  said  estate  herein- 
after particularly  described,  and  any  other  property  not  now 
known  or  discovered,  which  may  belong  to  the  said  estate,  or  in 
which  the  said  estate  may  have  any  interest,  be,  and  tlic  same  is 
hereby,  distributed  as  follows : 


6i4  New  Book  of  Forms. 

All  of  said  property  to  be  distributed  to  Jiis  zvidow,  H.  L. 

The  following  is  a  particular  description  of  the  said  residue  of 
said  estate  referred  to  in  this  decree,  and  of  which  distribution  is 
now  ordered  as  aforesaid : 

Eight  hundred  dollars  in  gold  coin  of  the  United  States,  cash 
in  the  hands  of  said  executor. 

NOTE. — When  any  account  is  rendered  for  settlement,  the  court  ap- 
points a  day  for  the  settlement  thereof;  the  clerk  thereupon  gives  notice 
hy  posting  in  at  least  three  public  places  in  the  county,  setting  forth 
the  name  of  the  estate,  the  executor  or  administrator,  and  the  day  ap- 
pointed for  the  settlement.  The  court  may  order  such  further  notice 
to  be  given.  If  the  account  is  a  final  settlement,  and  a  petition  for  the 
final  distribution  of  the  estate  is  filed  with  said  accounts,  the  notice 
must  state  those  facts,  and  the  notice  must  be  given  by  posting  or 
publication,  as  the  court  may  direct,  and  for  such  time  as  may  be  or- 
dered. On  the  settlement  of  said  account,  distribution  and  partition 
of  the  estate  to  all  entitled  thereto  may  be  immediately  had  without 
further  notice  or  proceedings:  Cal.  C.  C.  P.,  sees.  1633,  1634;  Alaska, 
Codes,  pt.  4,  c.  86,  sec.  880;  Arizona,  C.  C,  par.  1862;  Idaho,  C.  C.  P., 
sec.  4254;  Montana,  C.  C.  P.,  sec.  2792;  Nevada,  Comp.  Laws,  sec.  2991; 
North  Dakota,  Probate  Code,  sees.  6509-6516;  South  Dakota,  Probate 
Code,  sees.  307-311;  Utah,  Eev.  Stats.,  sec.  3945;  Wyoming,  Eev.  Stats., 
sec.  4830. 


No.   1027. — Decree — Distribution. 

[Title  of  Court  and  Estate.] 

M.  J.,  the  administratrix  of  the  estate  of  T.  J.,  deceased,  hav- 
ing on  the  seventeenth  of  August,  ipo6,  filed  in  this  court  her 
petition,  praying  for  an  order  finally  distributing  said  estate ; 
said  matter  coming  on  regularly  to  be  heard  this  nineteenth  day  of 
September,  igo6,  the  hearing  of  said  petitio-n  was  by  the  order  of 
this  court,  didy  made  and  entered,  continued  until  this  tzventy- 
sixth  day  of  September,  jpo6,  at  eleven  o'clock  A.  M.,  and  at  the 
said  last-mentioned  time  the  said  administratrix  appearing  by  her 
counsel,  and  the  attorney  heretofore  appointed  for  the  minor  heirs 
of  said  deceased,  being  present  in  court  aiui  representing  such 
minor  heirs,  this  court  proceeded  to  the  hearing  of  said  petition ; 
and  it  appearing  to  the  satisfaction  of  this  court  that  the  residi/e 
of  said  estate,  consisting  of  the  property  hereinafter  particularly 
described,  is  now  ready  for  distribution,  and  that  said  estate  is 
now  in  a  condition  to  be  closed : 

That  the  whole  of  said  estate  is  common  property,  it  having 
been  acquired  by  said  deceased  after  his  marriage  to  said  M.  J. 

That  the  said  T.  /.  died  intestate,  in  the  city  and  county  of 
San  Francisco,  on  the  seventeenth  day  of  May,  iQod,  leaving  him 
surviving  said  M.  J.,  his  zvidow,  and  J.  J.,  W.  J.,  a  minor,  C.  J., 
a  minor,  and  E.  J.,  a  minor,  the  children  of  said  deceased,  and  his 
only  descendants. 


Decree.  615 

That  since  the  rcncfitlon  of  her  said  final  account  the  sum  of 
fifty  dollars  has  come  into  the  hands  of  said  administratrix,  and 
the  sum  of  tzvcnty  dollars  and  sixty-two  cents  has  l^^cn  expended 
by  said  administratrix  as  necessary  expenses  of  administration, 
the  vouchers  whereof,  together  with  a  statement  of  such  receipts 
nnd  disbursements,  are  now  presented  and  filed,  and  the  payments 
are  approved  by  this  court;  and  that  the  estimated  expenses  of 
closing  said  estate  will  amount  to  the  sura  of  tiventy-Uve  dollars. 

That  the  said  M.  J.,  tlu  surziving  widow  of  said  deceased,  is 
entitled  to  the  one-half  the  residue  of  said  estate,  and  the  said 
descendants  of  said  deceased  are  entitled  to  the  other  half  of  the 
said  residure  of  the  estate. 

Now,  on  this,  the  said  tzventy-sixth  day  of  September,  ipo6,  on 
motion  of  R.  H.,  Esq.,  counsel  for  said  administratrix,  the  said 
attorney  for  the  minor  heirs  of  said  deceased  consenting; 

It  is  hereby  ordered,  adjudged  and  decreed  that  die  residue  of 
said  estate  of  T.  J.,  deceased,  hereinafter  particularly  described, 
and  now  remaining  in  the  hands  of  said  administratrix,  and  any 
other  property  not  now  known  or  discovered,  which  may  belong 
to  the  said  estate,  or  in  which  the  said  estate  may  have  any  interest, 
be,  and  the  same  is  hereby  distributed  as  follows,  to  wit : 

The  otte-half  of  said  residue  to  the  said  M.  J.,  the  widow  of 
said  deceased,  and  the  other  half  of  said  residue  to  said  J.  J., 
IV.  J.,  C.  }.,  and  B.  J.,  the  descendants  of  said  deceased;  tliat  is 
to  say,  thai  the  sum  of  $662.^2  be  paid  to  said  M.  J.,  and  the  sum 
of  $16^.62  be  paid  to  said  J.  J.,  and  tJie  like  sum  to  the  legally 
appointed  guardian  of  each  of  said  minors,  W.  }.,  C.  J.,  and  B.  J.; 
and  the  one  equal  undivided  half  part  of  the  real  estate  is  herebv 
distributed  to  said  M.  J.,  and  the  other  equal  undizided  half 
part  of  the  real  estate  to  the  said  descendants  of  said  deceased;  to 
the  said  J.  J.,  one  undizided  one-eighth;  to  the  said  IV.  J.,  one 
undiz'ided  one-eighth;  to  the  said  C.  J.,  one  undizided  one-eighth: 
and  to  the  said  B.  J.,  one  undizided  one-eighth  of  the  whole  of 
the  real  estate  Ivereinafter  mentioned  and  described. 

The  following  is  a  particular  description  of  the  said  residue  of 
said  estate  referred  to  in  this  decree,  and  of  which  distribution  is 
ordered,  adjudged,  and  decreed,  as  aforesaid,  to  wit: 

Personed  Property; 

Ca^h $1,3-5  ^^ 

Real  Property:     [Description.] 

NOTE. — Upon  the  final  settlement  of  the  accounts,  or  at  any  sabse- 
quent  time,  upon  the  application  of  any  interested  persons,  the  court 
proceeds  to  distribute  the  residue  of  the  estate  among  the  persons  ^'U- 
titled  thereto  [and  if  the  dceodent  left  a  surviving  child,  and  the  issua 
of  other  children,  and  any  of  them,  before  the  close  of   the  administra- 


6i6  New  Book  of  Forms. 

tion,  have  died  while  nnder  age  and  not  having  been  married,  all  the 
estate  which  such  deceased  child  was  entitled  to  by  inheritance  must, 
■without  administration,  be  distributed  to  the  other  heirs  at  law.]  A 
statement  of  any  receipts  and  disbursements,  since  the  rendition  of  his 
fr.al  accounts,  must  be  reported  and  filed  at  the  time  of  making  such 
distribution,  and  a  settlement  thereof,  together  with  an  estimate  ot 
the  expenses  of  closing  the  estate,  must  be  made  by  the  court  and  in- 
cluded in  the  order  or  decree;  or  the  judge  may  order  notice  of  settle- 
ment of  such  supplemental  account,  and  refer  the  same  as  in  other 
eases:  Cal.  G.  C.  P.,  see.  1665;  Alaska,  Codes,  pt.  4,  c.  87,  sec.  880; 
(Arizona,  C.  C,  par.  189S;  Idaho,  C.  C.  P.,  sec.  4275;  Montana,  C.  C.  P., 
isec.  2S43;  Nevada,  Comp.  Laws,  sec.  3001;  New  Mexico,  Comp.  Laws, 
sees.  2027,  2028;  North  Dakota,  Probate  Code,  sees.  6509-6529;  South 
Dnkota,  Probate  Codes,  sees.  307-331;  Utah,  Eev.  Stats^  see,  3953;  Wash- 
ington, BaUinger's  Codes,  see.  6355. 


No.  1028. — Decree — Distribution  to  Foreign  Executor. 

[Title  of  Court  and  Cause.] 

[The  same  as  in  decree  settling  final  account  and  for  distri- 
bution, to  the  clause  stating  tlie  balance,  and  then  proceed  as 
follows :] 

That  the  will  of  said  deceased  has  been  duly  admitted  to  pro- 
bate in  the  district  court  of  the  county  of  Washo,  state  of  Nevada; 
that  said  state  was  the  place  of  residence  of  said  deceased  at  the 
time  of  his  death ;  that  it  is  necessary  in  order  that  said  estate  may 
be  distributed  according  to  said  will,  that  the  following  described 
property  be  delivered  to  the  executor  of  said  A.  B.  C,  deceased, 
in  the  state  of  Nevada;  and  it  is  therefore  ordered  that  the  execu- 
tor of  the  estate  in  the  state  of  California,  to  wit,  H.  B.  C,  herein 
appointed,  do  forthwith  deliver  to  L.  M.  A.,  the  executor  of  said 
deceased,  in  the  state  of  Nevada,  appointed  by  the  said  court  in 
the  state  of  Nevada,  the  following  portion  of  said  estate,  to  wit: 
[Description.] 

NOTE.— California,  C.  C.  P.,  sec.  1667;  Alaska,  Codes,  pt.  4,  e.  87, 
see.  880;  Arizona,  C.  C.  P.,  par.  1S98;  Idaho,  C.  C.  P.,  sec.  4277;  Mon- 
tana, C.  C.  P.,  sec.  2845;  New  Mexico,  Comp.  Laws,  sees.  1946-2020; 
North  Dakota,  Probate  Code,  sec.  6524:  South  Dakota,  Probate  Court, 
sec  253j   Utah,  Bev.  Stats.,  sees.   3962-3969. 


No.  1029. — Decree — Distribution  on  Settlement. 

[Title  of  Court  and  Estate.] 

M.  J.,  the  administratrix  of  the  estate  of  T.  J.,  deceased,  having 
on  the  seventeenth  day  of  August,  ipo6,  filed  in  this  court  her 
petition,  setting  forth,  among  other  matters,  that  her  accounts 
have  been  finally  settled  and  said  estate  is  in  a  condition  to  be 
dosed;  and  that  a  portion  of  said  estate  remains  to  be  divided 


DiccR^B.  617 

among  the  heirs  of  said  deceased;  that  said  matter  coming  on 
regularly  to  be  heard  this  nineteenth  day  of  September,  j(^o6,  the 
hearing  of  said  petition  was,  by  the  order  of  this  court,  duly  made 
and  entered,  continued  until  this  tzventy-sixth  day  of  September, 
1906,  at  eleven  o'clock  A.  M. ;  and  at  the  said  last-mentioned  time, 
the  said  administratrix  appearing  by  her  counsel,  and  F.  J.  F., 
Esq.,  the  attorney  heretofore  appointed  for  the  minor  heirs  of  said 
deceased,  being  present  in  court  and  representing  such  minor 
heirs,  this  court  proceeded  to  the  hearing  of  said  petition ;  and  it 
appearing  to  the  satisfaction  of  this  court  that  the  residue  of  said 
estate,  consisting  of  the  property  hereinafter  particularly  de- 
scribed, is  now  ready  for  distribution,  and  that  said  estate  is  now 
in  a  condition  to  be  closed : 

That  the  whole  of  said  estate  is  common  property,  it  having 
been  acquired  by  said  deceased  after  his  marri-age  to  said  M.  J. 

The  following  is  a  particular  description  of  the  said  residue  of 
said  estate  referred  to  in  this  decree,  and  of  which  distribution  is 
ordered,  adjudged,  and  decreed,  as  aforesaid,  to  wit: 

Personal  Property: 

Cash $^>3^5  00 

Real  Property:  [Description.] 

NOTE. — In  the  order  or  decree  of  distribntion,  the  eourt  names  the 
persons  and  the  proportions  or  parts  to  which  each  is  entitled,  and 
Buch  persons  may  recover  their  shares  from  the  executor  or  administra- 
tor, or  any  person  having  the  same  in  possession.  Such  order  or  decree 
is  conclusive  as  to  the  rights  of  heirs,  legatees,  or  devisees,  subject  only 
to  be  reversed,  set  aside,  or  modified  on  appeal:  Cal.  C.  C.  P..  sec.  1666; 
Alaska,  Codes,  pt.  4.  c.  88.  sees.  864,  880;  Arizona,  C.  C,  par.  1897; 
Idaho,  C.  C.  P..  sec.  4276:  Montana,  C.  C.  P.,  sec.  2844;  Nevada,  Comp! 
Laws,  sec.  .^002;  Nfw  Mexico,  Comp.  Laws,  sees.  2027,  2028;'  North 
Dakota.  Probate  Code.  sees.  6504-651 G;  South  Dakota,  Probate  Code 
pecs.  .307-.3;?l;  Utah.  Rev.  Stats.,  sec.  3945;  Washington,  Ballin-er's 
Codes,  sec.  6356;  Wyoming,  Rev.  Stats.,  sec.  4831.  " 


No.    1030.— Decree — Exempt     Property     Set    Apart— Court's 

Motion. 

[Title  of  Court  and  Estate.] 

It  is  ordered  that  all  the  property  described  in  the  inventory, 
filed  herein,  exempt  from  execution,  be  and  the  same  is,  bv  this 
order,  set  apart  for  the  use  of  M.  /.,  widow  of  said  H.  /..  de- 
ceased, including  the  homestead,  if  any  there  be  selected,  desio-- 
nated,  and  recorded,  provided  said  homestead  was  selected  from 
the  common  property  belonging  to  the  said  deceased  and  his  said 
widow,  or  from  the  separate  property  of  die  persons  selecting-  or 
joining  in  tlie  selection  of  the  same. 


CiS  New  Book  of  Forms. 

NOTE. — At  any  time  before  the  estate  is  closed  [after  inventory  re- 
turned], the  court  may,  on  its  own  motion  or  on  petition,  set  apart  for 
the  use  of  the  surviving  husband  or  wife,  or,  in  case  of  his  or  her 
death,  to  the  minor  children  of  the  decedent,  all  the  property  exempt 
from  execution,  including  the  homestead  selected,  designated  and  re- 
corded; provided  such  homestead  was  selected  from  the  common  prop- 
erty, or  from  the  separate  property  of  the  persons  selecting  or  joining 
in  the  selection  of  the  same.  If  none  has  been  selected,  designated, 
and  recorded,  or,  in  case  the  homestead  was  selected  by  the  survivor 
out  of  the  separate  property  of  the  decedent,  the  decedent  not  having 
joined  therein,  the  court  must  select,  designate,  and  set  apart,  and  cause 
to  be  recorded,  a  homestead  for  the  use  of  the  surviving  husband  or  wife 
and  the  minor  children;  or,  if  there  be  no  surviving  husband  or  wife,  then 
for  the  use  of  the  minor  childrea,  out  of  the  common  property,  or  if  there 
be  no  common  property,  then  out  of  the  real  estate  belonging  to  the  de- 
cedent: Cal.  C.  C.  P.,  sec.  1465.  Under  these  provisions  no  evidence  what- 
ever is  necessary  preceding  the  order.  A  general  order  "that  all  prop- 
erty exempt  from  execution  be  set  aside  as  provided  in  section  1465  of 
the  Code  of  Civil  Procedure"  is  all  that  is  necessary:  Id.,  sec.  1704. 
Such  order  carries  the  homestead  and  all  other  exempt  property.  When 
the  order  is  made  the  question  as  to  what  property  is  exempt  must  be 
determined  when  the  question  of  exemption  is  in  issue  in  the  same  or 
Bome  other  proceeding.  As  to  the  second  paragraph:  If  no  homestead 
has  been  selected,  then  the  court's  order  and  selection  carves  one  out; 
but  if,  notwithstanding  the  order,  one  has  been  selected,  and  not  aban- 
doned, the  court's  order  gives  none.  It  serves  only  to  demonstrate  that 
the  court  was  mistaken.  A  new  homestead  cannot  be  acquired  until  the 
old  one  [if  any]  is  abandoned:  Alaska,  Codes,  pt.  4,  c.  8.3,  sees.  815-819; 
Arizona,  C.  C,  par.  172G;  Idaho,  C.  C.  P.,  sec.  4120;  Montana,  C.  C.  P., 
see.  2581;  Nevada  Comp.  Laws,  see.  2886;  New  Mexico,  Comp.  Laws,  sec. 
2041;  North  Dakota,  Probate  Code,  sees.  6.389-6394;  Oregon,  Codes  and 
Statutes,  sec.  1154;  South  Dakota,  Probate  Code,  sees.  153-161;  Washing- 
ton, Ballinger's  Codes,  sec  6220;  Wyoming,  Eev.  Stats.,  sees.  4736,  4737. 


No.  1 03 1. — Decree — Homestead  Set  Apart 
[Title  of  Court  and  Estate.] 

M.  J.,  the  administratrix  of  the  estate  of  T.  J.,  deceased,  hav- 
ing, on  the. sixth  day  of  July,  ipo6,  made  application  to  the  judge 
of  this  court,  by  petition,  for  an  order  setting  apart,  for  the  use 
of  the  family  of  said  deceased,  the  homestead  in  said  petition 
and  hereinafter  particularly  described,  together  with  the  dwell- 
ing-house thereon  and  its  appurtenances ;  [or,  if  the  order  is  made 
bv  the  court  without  petition,  or  upon  verbal  application  in  open 
court,  then  say]  it  is  ordered  that  all  that  certain  lot,  [describing 
it]  be  and  the  same  is,  etc.,  set  apart,  etc. 

And  all  and  singular  the  law  and  the  evidence  being  by  the 
court  understood  and  considered,  it  is  ordered,  adjudged,  and 
decreed,  that  all  that  certain  lot,  piece,  or  parcel  of  land,  de- 
scribed in  said  petition  as  situate  in  the  city  and  countv  of  San 
hrancisco,  state  of  California,  and  described  as  follows,  to  wit: 
[Description.] 


DecRjJE.  619 

Together  with  the  dwelHng-house  thereon  and  its  appurtenances, 
be,  and  the  same  is  hereby,  set  apart  for  the  use  of  the  family  of 
said  T.  J.,  deceased  [or  to  said  M.  /.]  ;  and  that  the  same  shall  not 
be  subject  to  administration ; 

And  it  is  furtlier  ordered  that  a  certified  copy  of  this  decree  be 
recorded  in  the  office  of  the  county  recorder  of  said  city  and 
county  of  San  Francisco. 

NOTE.— California,  C.  C.  P.,  sec.  1465;  Arizona,  C.  C,  par.  172G; 
Idalio,  C.  C.  i'.,  sec.  4120;  Montana,  C.  C.  P.,  sec.  2581;  Nevada,  Comp. 
Laws,  sec.  2S86;  New  Mexico,  Comp.  Laws,  sees.  1747,  1749,  2041;  North 
Dakota,  Probate  Code,  sees.  6389-6.191;  South  Dakota,  Probate  Code, 
sees.  153-161;  Washington,  Ballinger's  Codes,  sec  6220;  Wyoming,  Bev. 
blata,  sees.  4736,  4737. 


No.  1032. — Decree — Discharge,  FinaL 
[Title  of  Court  and  Estate.] 


It  appearing  that  said  estate  has  been  fully  administered,  and 
it  being  shown  by  the  administratrix  thereof,  by  the  production  of 
satisfactory  vouchers,  that  said  administratrix  has  paid  all  sums 
of  money  due  from  her,  and  delivered  up  under  the  order  of  the 
court  all  the  property  of  the  estate  to  the  parties  entitled,  and 
performed  all  acts  lawfully  required  of  her; 

It  is  ordered,  adjudged  and  decreed,  that  said  administratrix 
and  her  sureties  be,  and  they  are  hereby,  released  and  discharged 
from  all  liability  to  be  hereinafter  incurred;*  that  the  said  estate 
is  fully  distributed,  and  the  trust  settled  and  closed. 

NOTE. — When  the  estate  has  been  fully  administered,  and  it  is 
shown  by  the  executor  or  administrator,  by  the  production  of  satisfac- 
tory vouchers,  that  he  has  paid  all  sums  of  money  due  from  him,  and  de- 
livered up,  under  the  order  of  the  court,  all  the  property  of  the  estate 
to  the  parties  entitled,  and  performed  all  the  acts  lawfully  required  of 
him,  the  court  must  make  a  judgment  or  decree  discharging  him  from 
all  liability  to  be  incurred  thereafter:  Cal.  C.  C.  P.,  sec.  1697;  Arizona, 
C.  C,  par.  1923;  Idaho,  C.  C.  P.,  sec.  4299;  Montana,  C.  C.  P.,  sec.  2886; 
Nevada,  Comp.  Laws,  sec.  3024;  North  Dakota,  Probate  Code,  sees.  6509, 
6524;  Oregon,  Codes  and  Stats.,  sec.  1202;  South  Dakota.  Probate  Code, 
sec.  330;  Utah,  Rev.  Stats.,  sec.  2965;  Washington,  Ballinger's  Codes 
sec.  6376;  Wyoming,  Rev.  Stats.,  sec.  4833. 


*The  profession  will  take  notice  that  the  statute  discharging  an  offi- 
cer from  a  liability  to  be  incurred  thereafter  is  in  the  nature  of"  an  "in- 
dulgence" for  a  wrong  to  be  committed.  A  singular  provision  is  found 
in  section  12%  of  the  old  California  street  assissuuiit  law,  muctiiio  that 
"the  city  council  may  in  its  discretion,  but  not  otlierwiss,  order  an  as- 
sessment": Stat3.  1889,  p.  169. 


620  New  Book  of  Forms. 


No.  1033. — Decree — Foreclosure. 

[Title  of  Court  and  Cause.] 

This  cause  came  on  regnjlarly  to  be  heard  in  open  court  on  this 
first  day  of  July,  1906,  J.  H.  S.  appearing  for  plaintiff,  and  the 
defendant  not  appearing. 

The  court  having  heard  all  the  evidence  and  proofs  produced 
herein,  and  duly  considered  the  same,  and  being  fully  advised  in 
the  premises,  and  it  appearing  therefrom  to  the  satisfaction  of  the 
court : 

First.  That  G.  B.,  the  above-name  defendant,  has  been  duly 
and  regularly  summoned  to  answer  unto  the  plaintiff's  complaint 
herein,  and  has  made  default  in  that  behalf,  and  that  the  default 
of  each  defendant  for  not  appearing  and  answering  unto  plaintiff's 
complaint  has  been  duly  and  regularly  entered  herein ; 

Second.  That  on  the  third  day  of  May,  ipo6,  the  plaintiff  here- 
in caused  to  be  filed  and  recorded  in  the  office  of  the  county  re- 
corder of  the  city  and  county  of  San  Francisco,  a  notice  of  the 
pendency  of  this  suit,  containing  the  names  of  the  parties  thereto, 
the  object  thereof,  and  also  a  true  and  correct  description  of  the 
lands  and  premises  affected  thereby,  to  wit,  the  lands  and  prem- 
ises hereinafter  described ; 

Third.  That  there  is  now  due  and  owing  to  the  plaintiff,  S. 
D.,  from  the  defendant  G.  B.,  upon  the  promissory  note,  and  for 
money  expended  under  the  terms  of  said  mortgage,  set  forth  and 
described  in  plaintiff's  complaint,  the  sum  of  ten  thousand  dollars, 
rind  forty  cents,  gold  coin  of  the  United  States,  and  that  the  de- 
fendant, G.  B.,  is  personally  liable  for  the  whole  amount  thereof. 

That  there  is  also  due  plaintiff  from  defendant,  G.  B.,  tzvo  hun- 
dred dollars  and  sixty  cents,  costs,  percentage  and  necessary  dis- 
bursements ; 

Fourth.  That  the  said  st^nis  of  ten  thousand  and  forty-one- 
hundredth  dollars  and  tzvo  hundred  and  sixty  one-hundredth  dol- 
lars, making  in  all  ten  thousand  two  hundred  and  one  dollars,  in 
gold  coin,  as  aforesaid,  is  a  valid  lien  upon  the  lands  and  premises 
in  plaintiff's  complaint,  and  hereinafter  set  forth  and  described, 
and  is  secured  by  the  mortgage  mentioned  in  said  complaint ; 

Fifth.  That  each  and  all  the  terms  and  conditions  of  said 
mortgage  have  been  broken  by  said  defendant,  G.  B.,  and  that 
plaintiff  is  entitled  to  have  said  mortgage  enforced  and  foreclosed, 
and  the  lands  and  premises  hereinafter  set  forth  and  described, 
sold  in  the  manner  prescribed  by  law,  and  the  proceeds  arising 
from  such  sale  applied  to  and  upon  the  payment  of  said  sum  of 
money  so  due  as  aforesaid ; 

Sixth.  That  each  and  all  of  the  allegations  and  averments  in 
plaintiff's  complaint  contained  are  true  and  correct. 


Decree.  621 

Now,  therefore,  on  motion  of  /.  H.  S.,  counsel  for  plaintiff, 

It  is  adjudged  and  decreed,  that  all  and  singular  the  mortgaged 
premises  mentioned  in  the  said  complaint  and  hereinafter  de- 
scribed, or  so  much  thereof  as  may  be  sufficient  to  raise  the 
amount  due  to  the  plaintiff  for  the  p'-incipal  and  interest,  and 
costs  of  this  suit,  and  expenses  of  sale,  and  which  may  be  sold 
separately  without  material  injury  to  the  parties  interested,  be 
sold  at  public  auction  by  the  sheriff  of  the  city  and  county  of  San 
I'rancisco  [or  by  S.  C.  M.,  a  commissioner  hereby  appointed  to 
make  said  sale],  in  the  manner  prescribed  by  law,  and  according 
to  the  course  and  practice  of  this  court,  and  that  the  said  sheriff, 
after  the  time  allowed  by  law  for  redemption  has  expired,  exe- 
cuted a  deed  to  the  purchaser  or  purchasers  of  the  mortgaged 
premises  on  the  said  sale. 

That  the  said  sheriff'  [or  commissioner],  out  of  the  proceeds  of 
said  sale,  retain  his  fees,  disbursements  and  commissions  on  said 
sale,  and  pay  to  the  plaintiff,  or  his  attorney,  out  of  said  proceeds, 
the  sum  of  two  hundred  and  one  dollars  and  sixty  cents,  costs  of 
this  suit.  Also  pay  to  the  plaintiff  the  further  sum  of  ten  thou- 
sand dollars  and  forty  cents,  the  amount  so  found  due  as  afore- 
s-\u\  together  with  interest  thereon  at  the  rate  of  seven  per  cent, 
per  annum,  from  the  date  of  this  decree,  all  in  gold  coin  of  the 
United  States,  or  so  much  thereof  as  the  said  proceeds  of  sale  will 
pay  of  the  same. 

That  the  defendant,  G.  B.,  and  all  persons  claiming,  or  to  claim, 
from  or  under  him,  and  all  persons  having  liens  subsequent  to 
said  mortgage  by  judgment  or  decree  upon  the  land  described 
in  said  mortgage,  and  his  personal  representatives,  and  all  per- 
sons having  any  lien  or  claim  by  or  under  such  subsequent  judg- 
ment or  decree,  and  their  heirs,  or  personal  representatives,  and 
all  persons  claiming  to  have  acquired  any  estate  or  interest  in 
said  premises  subsequent  to  the  filing  of  said  notice  of  the  pen- 
dency of  this  action  with  the  recorder,  as  aforesaid,  be  forever 
barred  and  foreclosed  of  and  from  all  equity  of  redemption  and 
claim  of,  in  and  to  said  mortgaged  premises,  and  every  part  and 
parcel  thereof,  from  and  after  the  delivery  of  said  sheriff's  [or 
commissioner's]  deed. 

And  it  is  further  adjudged  and  decreed,  that  the  purchaser  or 
purchasers  of  such  mortgaged  premises  at  such  sale  be  let  into 
possession  thereof,  and  that  any  of  the  parties  to  this  action  who 
may  be  in  possession  of  said  premises,  or  any  part  thereof,  and 
any  person  who,  since  the  commencement  of  this  action,  has  come 
into  possession  under  them,  or  either  of  them,  deliver  possession 
thereof  to  such  purchaser  or  purchasers,  on  production  of  the 
sheriff's  [or  cocnmissioner's]  deed  for  such  premises,  or  any  part 
thereof. 


622  New  Book  of  Forms. 

And  it  is  further  adjudged  and  decreed,  that  if  the  moneys 
arising  from  the  said  sale  shall  be  insufficient  to  pay  the  amount 
so  found  due  to  the  plaintiff,  as  above  stated,  with  interest  and 
costs,  and  expenses  of  sale,  as  aforesaid,  the  sheriff  [or  commis- 
sioner] specify  the  amount  of  such  deficiency  and  balance  due  to 
the  plaintiff  in  his  return  of  said  sale,  and  that  on  the  coming  in 
and  filing  of  said  return,  the  clerk  of  this  court  docket  a  judg- 
ment for  such  balance  against  the  defendant,  G.  B.,  and  that  the 
defendant,  G.  B.,  pay  to  the  said  plaintiff  the  amount  of  such  de- 
ficiency and  judgment,  with  interest  thereon  at  the  rate  of  seven 
per  cent  per  annum  from  the  date  of  said  last-mentioned  return 
and  judgment,  and  that  the  plaintiff  have  execution  therefor. 

The  lands  and  premises  directed  to  be  sold  by  this  decree  are 
situate,  lying,  and  being  in  the  city  and  county  of  San  Francisco, 
state  of  California,  and  bounded  and  particularly  described  as  fol- 
lows, to  wit:   [Description.] 

Together  with  all  and  singular  the  tenements,  hereditaments, 
and  appurtenances  thereunto  belonging  or  in  any  wise  appertain- 
ing. 

NOTE.— California,  C.  C.  P.,  sees.  726-729;  Alaska,  Codes,  pt.  4, 
c.  85,  sees.  851-855;  Arizona,  C.  C,  par.  1432;  Idaho,  C.  C.  P.,  sees.  3331- 
."334;  Montana,  C.  C.  P.,  sees.  1290-1293;  Nevada,  Comp.  Laws,  sees. 
3343-3349;  North  Dakota,  C.  C,  sees.  5865-8881;  Oregon,  Codes  and 
Stats.,  sees.  423-426;  South  Dakota,  C.  C,  sees.  655-674;  Utah,  Rev. 
Stats.,   sees.   3498-3505;   Washington,   Ballinger's   Codes,   sees.   5885-5888. 


No.  1034. — Decree  Establishing  Heirship  of  Testate. 
[Title  of  Court  and  Cause.] 

[The  same  as  in  No.  1035,  down  to  and  including  the  words, 
"A.  B.  L.  aforesaid" ;  then  proceed :] 

That  said  deceased  left  a  will  which  has  been  admitted  to  pro- 
bate herein,  and  that  by  the  terms  of  said  will  the  whole  of  the 
said  estate  is  devised  and  bequeathed  as  follows,  to  wit,  a  specific 
money  legacy  of  $Q,ooo  is  bequeathed  to  A.  F.  and  personal  prop- 
erty described  as  follows  [description],  is  bequeathed  to  C.  D. 
and  the  following  described  real  estate  is  devised  to  B.  D.,  to  wit : 
[Description.]  And  all  the  residue  of  said  estate  is  disposed  of 
as  follows :  The  entire  remainder  thereof  to  go  to  0.  F.,  R.  C,  and 
T.  M.,  in  equal  portions,  and  upon  the  distribution  of  said  estate 
it  shall  be  so  awarded. 

NOTE.— California,  C.  C.  P.,  sees.  1664-1705;  Montana,  C.  C.  P.,  sec 
2840;  Utah,  Bev.  Stats,,  sec  398U;    Wyoming,   Itev.  Stata.,  sec  4835. 


Di-CREU.  623 

No.    1035. — Decree    Elstablishing    Heirship   of   Deceased    In- 
testate. 
[Tide  of  Court  and  Cause.] 

The  above-entitled  matter  coming  on  regularly  to  be  heard  this 
2d  day  of  June,  jpo6,  and  A.  B.,  C.  D.,  U.  F.,  and  G.  H.,  having 
appeared  by  their  attorney,  and  L.  J.,  K.  L.,  and  M.  N.,  having 
failed  to  appear,  and  their  faults  having  been  entered  as  ordered 
by  tliis  court,  and  the  entire  matter  relating  to  the  rights  of  all  the 
persons  hereinabove  mentioned  having  been  presented  to  the  court 
and  submitted  for  judgment  upon  the  merits: 

It  is  adjudged  and  decreed  as  follows,  that — is  to  say,  the  A.  B. 
L.  aforesaid  died  intestate  on  the  j(/  day  of  June,  1^05,  leavin"- 
surviving  as  his  only  heirs  at  law  the  persons  whose  names  and 
relationship  to  said  deceased  are  as  follows,  to  wit:  [Names  and 
residences.]  And  that  upon  the  death  of  said  A.  B.  L.  the  estate 
of  said  deceased  descended  to  his  said  heirs  at  law,  and  is  now 
vested  in  them,  subject  to  administration,  in  the  following  pro- 
portions, to  wit :  The  said  A.  B.,  C.  D.,  B.  F.,  and  G.  H.  are  the 
owners  of  an  undivided  one-JuUf;  the  said  estate,  and  each  of  said 
persons  is  entitled  to  distribution  of  said  estate  according  to  their 
respective  rights  and  interests  herein  set  forth,  and  G.  J.  and  K. 
L.  and  M.  N.  are  entitled  to  the  remaining  one-half  of  said  estate,  ' 
and  said  A.  B.,  C.  D.,  B.  F.,  G.  H.,  I.  J.,  K.  L.,  and  M.  N.  are 
entitled  to  the  aforesaid  respective  portions,  and  that  in  case  the 
estate  is  not  sufficient  to  satisfy  all  the  said  bequests,  and  devises 
the  order  of  priority  shall  be  as  follows,  to  wit,  each  of  said  heirs 
shall  take  and  inherit  his  proportion  of  the  remainder,  subject  to 
distribution  in  tlie  proportions  herein  aforesaid  adjudged. 

NOTE.— California,  C.  C.  P.,  sees.  1664,  1705;  Montana,  C.  C.  P.,  sec. 
2840;   Utah,  Eevised  Stats.,  sec.   3980;   Wyoming,  Eev.  Stats.,  sec.  4835. 

No.  1036. — Decree  of  Partition. 
[Title  of  Court  and  Cause.] 

This  matter  having  been  heard  and  submitted  to  the  court  for 
judgment,  and  it  appearing  to  the  court  that  all  things  directed 
by  law  to  be  done  prior  to  this  order  of  confirmation :  It  is  or- 
dered, adjudged  and  decreed  that  said  partition  so  made  bv  said 
commissioner  be  confirmed,  and  the  same  is  hereby  confirmed  be- 
tween said  parties,  and  that  in  accordance  therewith  there  be 
vested  in  A.  B.  C,  in  severalty,  in  lieu  of  his  undivided  share  of 
said  estate,  the  property  described  as  follows,  to  wxi:  [Descrip- 
tion.] 

[Proceed  with  others  in  same  manner.] 

The  property  to  be  so  partitioned  is  described  as  follows,  to  wit : 
[Description.] 


624  Nr:w  Book  op  Forms. 

NOTE.— California,  C.  C.  P.,  sec.  16S4;  Alaska,  Codes,  pt.  4,  c.  43, 
sees.  397-443;  Arizona,  C.  C,  par.  1901;  Idaho.  C.  C.  P.,  sec.  4291; 
ojlontana,  C.  C.  P.,  sec.  2869;  Nevada,  Comp.  Laws,  sec.  3017;  New 
Mexico,  Comp.  Laws,  sees.  3179-3186;  North  Dakota,  Probate  Code, 
sees.  6517-6523;  South  Dakota,  Probate  Code,  sees.  312-323;  Utah,  Rev. 
Stats.,  sec.  3959;  Washington,  Ballinger's  Codes,  see.  6368;  Wyoming, 
Eev.  Stats.,  see.  4849. 

No.  1037. — Decree — Sole  Trader. 
[Title  of  Court  and  Cause.] 

The  application  of  A.  J.,  wife  of  T.  J.,  coming  on  regularly  to 
be  heard  this  third  day  of  November,  IQ06,  and  proof  having 
been  first  made  to  the  satisfaction  of  the  court  that  notice  in  due 
fonn  and  substance  of  petitioner's  intention  to  make  this  applica- 
tion had  been  duly  published  in  the  D.  E.,  a  newspaper  published 
and  circulated  in  the  city  and  county  of  San  Francisco,  for  four 
successive  weeks,  and  no  creditor  of  said  petitioner' s  husband  hav- 
ing aied  any  written  opposition  to  her  application  or  appeared  to 
oppose  tJie  same; 

The  court  proceeded  to  hear  the  allegations  of  said  applicant's 
petition,  duly  filed  and  verified ;  and  said  applicant  appearing  in 
person  in  open  court,  and  having  been  duly  examined  by  said 
court  under  oath,  as  required  by  law,  and  after  hearing  said  ap- 
plicant's proofs,  it  duly  appearing  to  the  satisfaction  of  the  court 
that  a  proper  case  exists  for  granting  the  order,  and  that  said  ap- 
plicant had  been  a  bona  Me  resident  of  said  county  for  six  months 
and  upward  next  preceding  her  application  herein,  thereupon  said 
applicant  did  make  and  file  with  the  clerk  of  this  court  the  oath 
required  by  law,  and  the  court  now  here  finds  the  following  facts 
from  the  proofs,  and  in  accordance  therewith : 

1.  That  the  application  is  made  in  good  faith,  to  enable  said 
applicant  to  support  herself  and  her  five  children,  dependent  upon 
her,  viz. :  A.  J.,  aged  fourteen  years ;  W.  J.,  aged  twelve  years ; 
F.  J.,  aged  ten  years;  A.  J.,  aged  eight  years;  and  E.  J.,  aged  five 
years. 

2.  That  the  reason  of  insufficient  support  from  her  said  hus- 
band is,  he  is  out  of  health  and  unable  to  worii  at  his  trade  a  major 
portion  of  the  time. 

3.  That  applicant  has  no  legal  grounds  for  divorce. 

4.  That  the  money  to  be  invested  in  said  business  is  obtained 
and  loaned  from  a  friend  of  petitioner. 

Now,  therefore,  by  virtue  of  the  law  and  the  premises,  it  is  or- 
dered, adjudged  and  decreed,  that  she,  the  said  A.  J.,  be,  and  is 
hereby  authorized  and  empowered  to  carry  on  in  her  own  name, 
and  on  her  own  account  as  a  sole  trader,  the  business  specified  in 
said  notice  and  petition,  as  follows,  to  wit:  That  of  buying  and 
selling  goods,  tvarcs,  and  merchandise,  and  keeping  a  general 
t^ariety  store  in  said  city  and  county  of  San  Francisco. 

NOTE.— California,  C.  "c.  P.,  sees.  1817-1820;  Idaho,  C.  C.  P.,  se«. 
3892;  Montana,  C.  C^  see.  2294;  Nevada,  Como.  Laws,  sec.  546. 


De;faui.t — Demanu  02.' 


DEFAULT. 


No.  1038. — Default,  Entry  of. 
[Title  of  Court  and  Cause.] 

In  this  action  the  defendant,  R.  E.  R.  and  P.  G.  L.,  having 
been  regularly  served  with  process,  and  having  failed  to  appear 
and  answer  the  plaintiff's  complaint  on  file  herein,  and  the  time 
allowed  by  law  for  answering  having  expired,  the  default  of  said 
defcfuiants,  R.  E.  R.  and  P.  G.  L.  in  the  premises  is  hereby  duly 
entered  according  to  law. 

NOTE. — California,    C.   C.   P.,   sec.   585.     On    amended   complaint:    Id., 
Bcca.  432,  872.     Forcible  entry:  Id.,  see.  1169. 


DEMAND. 


No.   1039.— Demand — Smrender  of  Premises. 

To  /.  /.,  Esq. 

My  Dear  Sir;  I  hereby  demand  that  you  forthwith  surrender  to 
me  the  southwest  quarter  of  the  southwest  quarter  of  section  No. 
26,  township  No.  12  south,  of  range  22  east,  Mount  Diablo  base 
and  meridian,  comity  of  Tulare,  state  of  California. 
(Dated.) 

Respectfully  yours, 

J.  R.  S. 

NOTE. — A  copy  of  the  notice  should  be  served,  and  the  original  pre- 
served as  evidence,  because  it  has  been  the  experience  of  the  writer  of 
this  note  that  defendants  in  forcible  entry  cases  seldom  admit  a  fact 
if  there  is  the  slightest  pretext  for  the  introduction  of  conflicting  evi- 
dence. It  would  be  advisable,  and  in  some  instances  less  dangerous  to 
the  notice  server's  person,  to  have  a  witness,  who  should,  if  convenient, 
lie  a  friend,  present  when  demand  is  made.  It  is  not  necessary,  how- 
ever, to  reduce  the  demand  to  writing.  It  may,  in  cases  of  danger,  be 
shouted  at  the  intruder  through  a  hole  in  a  fence,  or  crack  in  a  wall, 
or  from  the  roof  of  a  house,  or  top  branches  of  a  tree.  The  principal 
object  is  to  make  a  demand,  and  the  law  does  not  require  special  for- 
mality in  doing  so.  Even  the  words  "My  Dear  Sir,"  and  "Respect- 
fully yours"  may  be  omitted.  They  may,  however,  in  extreme  cnses, 
serve  a  good  purpose  as  conciliatory  expressions.  If  practicable,  the 
intruder  might  be  requested  to  admit  service  of  demand.  If  so,  write 
on  the  bnck  of  the  written  demnnd:  "Service  of  the  within  admitted 
this  eleventh  day  of  August,  1906,"  to  which  the  intruder  sic^ns  hia 
name:  Cal.  C.  C.  P.,  sec.  1160. 
New  Forms — iO 


626  Nbw  Book  of  Forms. 


DEMUEEER. 


No.  1040. — Demurrer — Complaint  not  Stating  Cause  of  Action. 
[Title  of  Court  and  Cause.] 

The  defendant  demurs  to  the  complaint  herein,  and  for  cause 
of  demurrer  alleges : 

That  the  complaint  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action. 

NOTE. — The  references  under  this  form  cover  all  forms  of  demurrer 
to   complaints  in  this  book. 

The  defendant  may  demur  to  the  complaint  within  the  time  required 
by  the  summons  to  answer,  when  it  appears  upon  the  face  thereof, 
either:  1.  That  the  court  has  no  jurisdiction  of  the  person  of  the  de- 
fendant, or  the  subject  of  the  action;  2.  That  the  plaintiff  has  no  legal 
capacity  to  sue;  or  3.  That  there  is  another  action  pending  between  the 
same  parties  for  the  same  cause;  or  4.  That  there  is  a  defect,  or  mis- 
joinder, of  parties  plaintiff  or  defendant;  or  5.  That  several  causes  of 
action  have  been  improperly  united;  or  6.  That  the  complaint  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action;  or  7.  That  the 
complaint  is  ambiguous,  unintelligible,  or  uncertain.  The  complaint  must 
specify  the  grounds  of  demurrer,  and  unless  it  does,  it  will  be  dis- 
regarrled:  Cal.  C.  C.  P.,  sec.  430;  Alaska,  Codes,  pt.  4,  c.  7,  sec.  58; 
Arizona,  C.  C,  par.  1351;  Idaho,  C.  C.  P.,  sec.  3206;  Montana,  C.  C.  P., 
sec.  711;  Nevada,  Comp.  Laws,  sec.  3135;  New  Mexico,  Comp.  Laws, 
sec.  2685,  subd.  35;  North  Dakota,  sec.  5268;  Oregon,  Codes  and  Stat- 
utes, sec.  68;  South  Dakota,  C.  C.  P.,  see.  121;  Utah,  Rev.  Stats.,  see. 
2962;  Washington,  Ballinger's  Codes,  sees.  2907,  2911;  Wyoming,  Rev. 
Stats.,  sec.  3535. 


No.  1041. — Demurrer — Statute  of  Limitations. 

[Title  of  Court  and  Cause.] 

Now  comes  the  defendant,  and  demurring  to  the  complaint 
herein,  for  cause  of  demurrer,  alleges : 

That  plaintiff  should  not  maintain  this  action  because  the  com- 
plaint shows  that  it  is  barred  by  the  provision  of  suhdknsion  num- 
ber 5,  of  section  2^p,  of  the  Code  of  Civil  Procedure  of  the  state 
of  California. 


No.   1042. — Demurrer — Misjoinder  of  Parties. 

[Title  of  Court  and  Cause.] 

The  defendant  demurs  to  the  complaint,  and  for  cause  of  de- 
murrer, alleges: 


Demurrer.  627 

That  L.  S.  K.  is  improperly  made  plaintiff  in  said  action,  be- 
cause it  appears  from  the  complaint  that  plaintiff  sold  and  deliv- 
ered the  goods  therein  described  to  A.  B.  C,  and  that  in  said  trans- 
action defendant  was  tlie  agent  of  said  A.  B.  C. 


No.  104 3. — Demurrer — Defect    of    Parties. 
[Title  of  Court  and  Cause.] 

The  defendant  demurs  to  the  complaint,  and  for  cause  of  de- 
murrer, alleges : 

That  there  is  a  defect  of  parties  plaintiff  in  this :  It  appears  in 
the  complaint  that  an  interest  in  tlie  cause  of  action  therein  stated 
has  been  assigned  to  A.  B.,  and  the  said  A.  B.  should  be  made  a 
party  plaintiiT;  [or  it  appears,  etc.,  that  C.  D.  is  the  principal 
obligor  in  said  contract,  and  that  the  defendant  is  not  liable,  ex- 
cept jointly  with  the  said  C.  D.] 

(Signed.) 

No.  1044. — Demurrer — Want  of  Jurisdiction  of  Person. 

[Title  of  Court  and  Cause.] 

The  defendant  demurs  to  the  complaint  in  this  action,  and  for 
cause  of  demurrer,  alleges  : 

That  the  court  has  no  jurisdiction  of  the  person  of  the  defend- 
ant, because  said  complaint  alleges  that  the  defendant  made  the 
contract  described  in  the  complaint  as  consul  of  the  Republic  of 
Paraguay,  at  the  port  of  San  Francisco. 

No.  1045. — Demurrer — Complaint  Uncertain,  etc 
[Title  of  Court  and  Cause.] 

The  defendant  demurs  to  the  complaint,  and  for  cause  of  de- 
murrer alleges : 

That  the  complaint  herein  is  uncertain  in  this:  It  cannot  be 
ascertained  therefrom  whether  plaintiff  sues  as  assignee  or  admin- 
istrator of  the  estate  of  A.  B.,  deceased  [or  any  other  ground]. 

No.  1046. — Demurrer — Misjoinder  of  Causes  of  Action. 
[Title  of  Court  and  Cause.] 

The  defendant  demurs  to  the  complaint,  and  for  cause  of  de- 
murrer alleges : 

That  several  causes  of  action  have  been  improperly  united  in 
this:  A  cause  of  action  for  the  conversion  of  personal  propcrtv 
by  defendant,  and  for  damages  for  the  conversion,  and  an  action 
to  recover  tlie  possession  of  the  said  property. 


628  New  Book  op  Forms. 

No.  1047, — Demurrer — Answer — Not  Stating  Sufficient  Facts. 
[Title  of  Court  and  Cause.] 

Now  comes  the  plaintifif,  and  demurring  to  the  answer  herein, 
for  cause  of  demurrer  alleges :  That  the  said  answer  does  not 
state  facts  sufficient  to  constitute  a  defense  to  tliis  action. 

(Signed.) 

NOTE. — The  plaintiff  may,  within  the  same  length  of  time  after  ser- 
vice of  the  answer  as  the  defendant  is  allowed  to  answer  after  service 
of  summons,  demur  to  the  answer,  or  to  any  one  or  more  of  the  several 
defenses  or  counterclaims  set  up  in  the  answer,  upon  the  grounds:  1. 
That  several  causes  of  counterclaims  have  been  improperly  joined;  2. 
That  the  answer  does  not  state  facts  sufficient  to  constitute  a  defense 
or  counterclaim;  3.  That  the  answer  is  ambiguous,  unintelligible,  or  un- 
certain: Cal.  C.  C.  P.,  sees.  443,  444;  Alaska,  Codes,  pt.  4,  c.  8,  sec 
65;  Arizona,  C.  C,  par.  1354;  Idaho,  C.  C.  P.,  sec.  3217;  Montana,  C.  C. 
P.,  sec.  715;  Nevada,  Comp.  Laws,  sec.  3154;  New  Mexico,  Comp.  Laws, 
see.  2685,  subd.  43;  North  Dakota,  C.  C,  see.  5277;  Oregon,  Codes  and 
Statutes,  sec.  80;  South  Dakota,  C.  C.  P.,  sec.  130;  Utah,  Eev.  Stats.,  sec, 
2976;  Washington,  Ballinger's  Codes,  sec  4916;  Wyoming,  Eev.  Stats., 
Bees.  3536,  3539-3542,  3554. 


No.  1048. — Demurrer — Answer  Ambiguous,  etc 
[Title  of  Court  and  Cause.] 

Now  comes  the  plaintiff,  and,  demurring  to  the  answer  herein, 
for  cause  of  demurrer  alleges :  That  the  said  answer  is  ambiguous 
in  this :  It  cannot  be  ascertained  therefrom  whether  the  counter- 
claim set  up  is  in  favor  of  defendant  as  a  private  person,  or  in  his 
favor  as  executor  of  the  estate  of  A.  B.  C,  deceased  [or,  it  is  un- 
intelligible, because  it  cannot  be  deciphered;  or,  because  it  is 
zvritten  in  the  Chinese  language;  or,  in  other  foreign  languages; 
or,  for  other  reasons]. 


DEPOSITION. 


No.   1049. — Deposition — Commission  to  Take. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California,  to  H.  H.,  in  City  of  New 

York,  in  the  State  of  New  York,  Greeting: 

Whereas,  it  appears  to  the  Judge  of  our  superior  court,  in  and 

for  the  city  and  county  of  San  Francisco,  state  of  California,  that 

W.  C,  of  the  city  of  New  York,  in  the  state  of  New  York,  is  a 


Deposition.  629 

material  witness  in  a  certain  action  now  pending  in  our  said  su- 
perior court,  between  J.  D.,  plaintiff,  and  R.  R.,  defendant,  and 
that  tlie  personal  attendance  of  said  witness  cannot  be  procured 
at  the  trial  of  the  said  action,  we,  in  confidence  of  your  prudence 
und  fidelity,  have  appointed  you,  and  by  these  presents  do  appoint 
you,  a  commissioner  to  examine  said  witness,  and  therefore  we 
authorize  and  empower  you,  at  certain  days  and  places,  to  be  by 
you  for  that  purpose  appointed,  diligently  to  examine  said  witness 
on  the  interrogatories  annexed  to  this  commission,  in  respect  to 
the  questions  in  dispute  herein,  and  upon  the  interrogatories,  di- 
rect and  cross,  and  upon  his  oath,  first  taken  before  you,  and  cause 
the  said  examination  of  the  said  witjiess,  to  be  reduced  to  writing 
and  signed  by  the  same  witness,  and  by  yourself,  and  then  certify 
and  return  the  same  annexed  to  this  commission,  in  a  sealed  en- 
velope, unto  our  superior  court  aforesaid,  directed  to  the  clerk 
thereof,  by  mail  or  other  usual  channel  of  conveyance,  with  all 
convenient  speed,  inclosed  under  your  seal. 

NOTE.— California,  C.  C.  P.,  sees.  2024,  2027,  2037;  Alaska,  Codes,  pt, 
4,  c.  62,  sees.  645-651;  Arizona,  C.  C,  par.  2514;  Idaho,  C.  C.  P.,  sec. 
4524;  Montana,  C.  C.  P.,  see.  3350;  Nevada,  Comp.  Laws,  sec.  3507;  New- 
Mexico,  Comp.  Laws,  sees.  3037-3039;  North  Dakota,  C.  C,  sees.  8389, 
8392;  Oregon,  Codes  and  Statutes,  sees.  832,  989,  990;  South  Dakota,  C. 
C.  P.,  sees.  513,  514;  Utah,  Kcv.  Stats.,  sees.  3450,  3452;  Washington, 
Ballinger's  Codes,  sees.  260,  4729,  6023,  6708;  Wyoming,  Eev.  Stats., 
sees.  3714,  4370. 

No.  1050. — Deposition — Instructions  to  Commissioners. 

1.  All  the  commissioners  named  in  the  commission  shall  have 
notice  of  the  time  and  place  of  executing  it ;  and  if  any  of  them 
do  not  act,  let  the  fact  that  they  were  notified,  or  could  not  be 
notified,  and  the  reasons  for  their  not  acting,  be  stated. 

2.  The  commission  must  be  executed  by  H.  H.,  the  commis- 
sioner named  therein. 

3.  The  acting  commissioner  will  examine  the  witnesses  sep- 
arately, after  publicly  administering  to  them  the  following  oath 
or  affirmation : 

"You  do  solemnly  swear,  that  tlie  evidence  you  shall  give  in 
this  issue,  pending  between  /.  D.  and  R.  R.,  shall  be  the  truth,  the 
whole  truth,  and  nothing  but  the  truth.     So  help  you  God." 

Or,  if  the  witness  shall  declare  that  he  has  conscientious  scru« 
pies  against  taking  an  oath,  or  swearing  in  any  form,  he  shall  be 
permitted  to  make  his  affirmation,  in  the  following  form: 

"You  do  solemnly  declare  [or  affirm],"  as  above. 

4.  The  general  style  or  title  of  the  depositions  must  be  drawn 
up  in  the  following  manner : 

"Depositions  of  witnesses  produced,  sworn  [or  affirmed]  and 
examined,  the  thirteenth  day  of  February,  in  the  year  1006,  at 
New  York,  under  and  by  virtue  of  a  commission  issued  out  of  the 


630  New  Book  of  Forms. 

superior  court,  in  and  for  the  city  and  county  of  Sail  Francisco, 
state  of  California,  in  a  certain  cause  therein  depending  and  at 
issue  between  /.  D.,  plaintiff,  and  R.  R.,  defendant,  as  follows : 

"A.  B.,  of  [insert  his  place  of  residence  and  occupation],  aged 
forty  years  and  upward,  being  duly  and  publicly  sworn  [or  af- 
firmed, pursuant  to  the  directions  hereto  annexed,  and  examined 
on  the  part  of  the  plaintiff,  doth  depose  and  say  as  follows,  viz. : 
First — To  the  first  interrogatory  he  saith,"  etc.  [insert  the  wit- 
ness' anszver].  "Second — To  the  second  interrogatory  he  saith," 
etc.,  and  so  on  throughout. 

If  he  cannot  answer,  let  him  say  that  he  does  not  know. 

5.  If  there  be  any  cross-interrogatories,  the  witness  will  go 
on  thus : 

"First — To  the  first  cross-interrogatory  he  saith,"  etc.,  and  so 
on  throughout. 

b.  \\  lien  the  witness  has  finished  his  deposition,  let  him  sub- 
scribe it,  and  the  acting  commissioner  will  certify  as  follows : 

"Examination  taken,  reduced  to  writing,  and  by  the  witness 
subscribed  and  sworn  to  tliis  fifteenth  day  of  February,  igo6, 
before 

"H.  H.,  Commissioner." 

7.  If  any  papers  or  exhibits  are  produced  and  proved,  they 
must  be  annexed  to  the  depositions  in  which  they  are  referred  to, 
and  be  subscribed  by  the  witness,  and  be  indorsed  by  the  acting 
commissioners,  in  this  manner: 

"At  the  execution  of  a  commission  for  the  examination  of  wit- 
nesses, between  /.  D.,  plaintiff,  and  R.  R.,  defendant,  this  paper 
writing  was  produced  and  shown  to  [insert  the  witness'  name], 
and  by  him  deposed  unto  at  the  time  of  his  examination,  before 

"H.  H.,  Commissioner." 

8.  The  acting  commissioners  will  sign  their  names  to  each 
half  sheet  of  the  depositions  and  exhibits. 

9.  If  an  interpreter  is  employed,  one  of  the  commissioners  will 
administer  to  him  the  following  oath,  and  certify  thereto: 

"You  do  solemnly  swear  that  you  will  truly  and  faithfully  in- 
terpret the  oath  and  interrogatories  to  be  administered  to  W-  G. 
L.,  a  witness  now  to  be  examined,  out  of  the  English  language 
into  the  Chinese  language,  and  that  you  will  truly  and  faithfully 
interpret  the  answers  of  the  said  W.  G.  L.  thereto,  out  of  the 
Chinese  into  the  English  language." 

Let  the  deposition  be  subscribed  by  the  interpreter  as  well  as 
by  the  witness,  and  certified  by  the  acting  commissioners  as  fol- 
lows : 

"Examination  taken,  reduced  to  writing,  subscribed  by  the  wit- 
ness and  by  the  sworn  interpreter,  and  sworn  to  by  the  witness, 
this  fifteenth  day  of  February,  igo6,  before 

"H.  H.,  Commissioner.'* 


Deposition.  6;^i 

10.  The  commissioner  will  make  return  on  the  back  of  the  com- 
mission by  indorsement,  thus : 

"The  execution  of  tliis  commission  appears  in  certain  sched- 
ules hereunto  annexed. 

"H.  H.,  Commissioner." 

11.  The  depositions  and  exhibits  (if  any)  must  be  annexed  to 
the  commission,  and  then  the  commission,  the  directions,  the  in- 
terrogatories, cross-interrogatories,  depositions,  and  exhibits  must 
be  folded  into  a  packet  and  bound  with  tapes.  The  acting  com- 
fuissioners  are  to  set  their  seals  at  the  several  meetings  or  cross- 
ings of  the  tapes,  indorse  their  names  on  the  outside,  and  direct 
It  thus : 

"To  IV.  A.  S.,  Esq.,  Clerk  of 

"the  Superior  Court  of  the  City  and 
"County  of  San  Francisco,  California." 

12.  When  the  commission  is  thus  executed,  made  up,  and  di- 
rected, it  must  be  returned  in  the  manner  specified  in  the  direc- 
tion on  the  commission  if  there  be  any. 

13.  If  there  be  no  direction  on  the  commission  specifying  the 
manner  in  which  it  is  to  be  returned,  then  it  must  either  be  de- 
livered to  the  court  by  one  of  the  acting  commissioners  person- 
ally, or  else  be  forwarded  by  some  person  coming  to  this  place, 
and  who  must  be  able,  on  his  arrival,  to  make  oath  before  one  of 
the  judges  or  the  clerk  of  the  court : 

"That  he  received  the  same  from  the  hands  of  A.  B.,  one  of 
the  commissioners,  and  that  it  had  not  been  opened  or  altered 
since  he  so  received  it." 

14.  In  case  of  returning  the  commission  by  mail,  it  is  to  be 
deposited  by  one  of  the  acting  commissioners  in  the  nearest  post- 
office,  he  making  the  following  indorsement  thereon : 

"Deposited  in  the  postoffice  at  the  city  of  New  York,  this  eigh- 
teenth day  of  February,  igo6,  by  me, 

"H.  H.,  Commissioner." 

15.  In  case  of  returning  the  commission  by  a  vessel,  it  is  to' be 
deposited  by  one  of  the  acting  connnissioncrs  in  the  letter-bag  of 
such  vessel,  he  making  upon  the  commission  the  following  in- 
dorsement (it  may  also  be  forwarded  by  any  usual  convevance)  : 

"Deposited  in  the  letter-bag  of  the  ship  Glory  of  the  Seas,  now 
lying  at  Pier  No.  12.  and  bound  for  the  port  of  San  Francisco, 
this  nineteenth  day  of  Fcbuary,  ipo6,  by  me, 

"H.  H.,  Commissioner." 

The  commissioners  are  requested  to  be  very  careful  to  obser\'e 
the  foregoing  instructions,  as  the  smallest  variance  may  vitiate 
the  execution  of  tlie  commission. 


632  New  Cook  of  Forms. 

NOTE. — California  Code  of  Civil  Procedure  has  no  provision  requir- 
ing instructions  to  be  given  to  commissioners.  The  form  is  drawn  sub- 
stantially according  to  the  general  practice.  In  some  states  the  courts 
regulate  the  matter  by  rule.  In  others  there  is  no  rule  or  statute.  The 
applicant  for  the  commission  usually  requests  the  clerk  to  give  similar 
instructions  so  that  his  deposition  may  not  be  ruled  out  for  informality. 
All  code  provisions  in  Code  of  Civil  Procedure,  sees.  2019-2038. 


No.  1051. — Deposition — Introduction  to  the  Testimony. 
[Title  of  Court  and  Cause.] 

Be  it  remembered.  That,  pursuant  to  the  order  hereunto  an- 
nexed, and  on  the  Urst  day  of  March,  ipo6,  at  Quincy,  in  the 
county  of  Plumas,  state  of  California,  before  me,  F.  B.  W.,  a  no- 
tary public  in  and  for  the  said  county  of  Plumas,  personally  ap- 
peared /.  A.,  witness,  produced  on  behalf  of  plaintiff  in  the  above- 
entitled  action,  now  pending  in  the  said  court,  who,  being  first 
by  me  duly  sworn,  was  then  and  there  examined  and  interrogated 
by  B.  P.  E.,  Esq.,  of  counsel  for  the  said  plaintiff,  and  by  0.  F. 
S.,  Esq.,  of  counsel  for  the  said  defendant,  and  testified  as  fol- 
lows : 

[Set  out  evidence  in  full] 

[See  Notice.  Affidavit,  Stipulation,  Instruction  to  Commission- 
er, Commission.] 


DEFAULTER. 


No.  1052. — Defaulters,  Attachment  for. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California  to  the  Sheriff  or  any  Con- 
stable of  said  County,  Greeting: 

You  are  hereby  commanded  forthwith  to  attach  the  body  of 
/.  C,  defaulting  juror,  and  have  him  before  our  said  court,  on 
the  twenty-ninth  day  of  January,  igo6,  at  ten  o'clock  A.  M.,  then 
and  there  to  show  cause  why  he  should  not  be  punished  for  con- 
tempt in  disobeying  the  order  summoning  him  to  appear  and  serve 
as  a  juror  in  said  court 

(All  courts.) 

NOTE. — California,  C.  C.  P.,  sec.  238. 


DlRjeCTlONS — DiSSOIvUTlON.  633 


DIRECTIONS. 


No.  1053. — Directions  to  Officer. 

[Title  of  Court  and  Cause.] 

To  C.  B.,  Esq.,  Cofustable,  Bush  Street,  Township  Alameda: 

By  authority  of  the  writ  of  attachment  issued  in  the  above-en- 
titled action,  you  will  please  attach  and  safely  keep  all  of  the  fol- 
lowing  described    property:    [Description.] 

And  you  are  hereby  notified  that  S.  K.,  Esq.,  has  in  his  pos- 
session the  following  described  property  belonging  to  defendant: 
[Description.] 
(All  courts.) 


DISSOLUTION. 


No.  1054. — Dissolution — Corporation — Objections  to. 
(Ti'Je  of  Court  and  Cause.] 

Now  comes  W.  P.,  a  claimant  for  damages  and  a  creditor  of 
said  M.  G.  Company,  and  files  his  objections  to  the  application 
of  said  company  to  dissolve. 

The  objection  is,  tliat  all  claims  and  demands  against  said  cor- 
poration have  not  been  satisfied  and  discharged,  and  particularly 
the  claim  of  him,  the  said  F.,  for  damages,  has  not  been  satis- 
fied or  discharged,  and  an  action  at  law  has  been  commenced  by 
him,  the  said  P.,  to  recover  said  damages,  to  wit,  the  sum  of  fif- 
teen thousand  dollars,  for  injuries  received  through  the  default 
and  negligence  of  said  corporation,  which  occasioned  an  explosion 
of  gas,  and  consequent  damage  to  said  F.,  as  set  forth  in  the  com- 
plaint in  said  action,  which  has  been  served  upon  the  defendant ; 
and  said  action  is  now  pending  in  the  superior  court  of  the  city 
and  count\'  of  San  Francisco,  state  of  California. 

Wherefore,  this  objector  prays  that  said  petition  may  be  denied. 


634  Nicvv  Book  oe  Forms. 


EXECUTOE  AND  ADMINISTEATOR. 


No.  1055. — Administrator — Request  for  His  Appointment  by 
Person  Entitled  to  Letters. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  of  the  City  and  County  of 

San  Francisco,  State  of  California  : 
The  undersigned  is  the  surviving  wife  of  the  said  A.  B.,  de- 
ceased. That  C.  D.  has  at  her  request  filed  his  petition  to  be 
appointed  administrator  of  the  estate  of  said  deceased.  That  the 
undersigned  is  a  resident  of  the  county  of  Alameda,  state  of  Cali- 
fornia, and  is  competent  to  serve  as  administrator  of  said  estate. 

NOTE. — Administration  may  be  granted  to  a  person  not  entitled  to 
letters  at  the  written  request  of  the  person  entitled.  If  the  person 
entitled  is  a  nonresident  of  the  state,  his  affidavit,  taken  before  an 
officer  who  has  authority,  by  the  laws  of  California,  to  administer  oaths 
out  of  said  state  may  be  received  as  prima  facie  evidence  of  the  iden- 
tity of  the  affiant.  If  the  person  entitled  is  a  resident  of  the  state,  he 
must  appear  before  the  court  in  person:  Cal.  C.  C.  P.,  sec  1379;  Arizona, 
C.  C,  par.  1661;  Idaho,  C.  C.  P.,  sec.  405.5;  Montana,  C.  C.  P.,  sec.  2448; 
Nevada.  Comp.  Laws,  sec.  2834;  North  Dakota,  Probate  Court,  sec.  6319; 
South  Dakota,  Probate  Code,  see.  94;  Wyoming,  Bev.  Stats.,  sec  4625. 


No.    1056. — Administrator — Objections   to   His   Appointment. 
[Title  of  Court  and  Estate.] 

Now  comes  S.  A.  /.,  a  son  of  said  deceased,  and  objecting  to 
the  appointment  oi  M.  A.  J.  [mother  of  this  objector  and  widow 
of  said  deceased] ,  administratrix  of  this  estate ;  for  reasons  why- 
she  should  not  be  appointed  alleges:  That  said  M.  A.  J.  is  a  non- 
resident of  this  state  and  a  resident  of  the  state  of  Nevada ; 

Tliat  she  is  incompetent  to  perform  the  duties  of  administratrix 
of  said  estate  because  of  her  want  of  understanding  in  this;  She 
can  neither  read,  write,  nor  speak  the  English  language;  and  also 
because  she  has  no  knowledge  of  business,  and  has  not  sufficient 
business  capacity  to  manage  said  estate; 

Or  She  was  on  the  loth  day  of  May,  igo6,  adjudged  by  the 
superior  court  of  Sierra  county,  California,  a  court  of  competent 
jurisdiction,  to  be  incompetent  to  transact  business,  and  said  ad- 
judication has  never  been  modified  or  set  aside  and  is  now  in 
force;  and  she  is  now  incompetent  as  in  said  decree  adjudged. 
This  contestant  further  alleges  that  he  is  entitled,  after  his  modier, , 
to  letters  of  administration  on  said  estate. 


Executor  and  Ajjmixistrator.  C35 

Wherefore  this  contestant  prays  that  the  appHcation  of  said  }f. 
A.  J.  be  denied  and  that  letters  be  issued  to  this  contestant. 

NOTE. — Any  person  interested  may  contest  the  application  for  letters 
of  atlrainistration  by  filing  opposition  on  the  groiinrl  of  the  ini-t»inpe- 
tency  of  the  applicant,  and  may  assert  his  own  rights  to  the  administra- 
tion and  prav  for  letters  for  himself:  Cal.  C.  C.  P.,  sec.  1374;  Arizona, 
C.  C,  par.  1656;  Idaho,  C.  C.  P.,  sec.  4050 ;  Montana,  C.  C.  P.,  sec.  sJ143, 
Nevada,  Comp.  Laws,  sec.  2829;  North  D.-ikota,  Prohnte  Code,  sec.  6306; 
South  Dakota,  Probate  Code,  sec.  89;  Utah,  Eev.  Stats.,  see.  3819;  Wy- 
oming, Rev.  Stats.,  sec.  4649. 


No.  1057. — Executor — Objections  to  His  Appointment. 

[Title  of  Court  and  Estate.] 

Now  comes  A.  F.,  and  objecting  to  the  appointment  of  peti- 
tioner C.  D.  as  executor  of  the  last  will  of  B.  P.,  deceased,  repre- 
sents to  the  court  that  the  said  C.  D.  is  not  competent  to  execute 
the  duties  of  the  trust  of  executor  of  said  will  by  reason  of  his 
drunkenness  [or  by  reason  of  his  improzndence,  or  want  of  undcr- 
siaiiding,  or  zvant  of  integrity]. 

Petitioner  further  states  that  he  is  a  brother  of  deceased  and 
also  a  creditor  of  his  estate.  That  the  drunkenness  of  said  C.  D. 
ii  habitual. 

Wherefore  petitioner  prays  that  the  petition  of  C.  D.  for  letters 
be  denied. 

NOTE. — For  any  of  the  reasons  given  in  the  text  of  this  form  and  in 
the  part  in  brackets  the  court  may  refuse  letters  to  an  applicant:  Cal. 
C.  C.  P.,  sec.  1351.  The  practice  is  to  file  with  the  petition  an  ajtplica- 
tion  for  letters  with  the  will  annexed  for  the  objector  or  some  other 
person.  It  does  not  appear  to  be  necessary  to  state  in  the  objections 
the  facts  upon  which  they  are  founded;  but  it  is  prudent  to  state  the 
facts:  Alaska.  Codes,  pt.  4.  c.  81,  sec.  797;  Arizona,  C.  C.  par.  1638; 
Montana.  C.  C.  P.,  sec.  2402;  Nevada.  Comp.  Laws,  sec.  2814;  North 
Dakota.  Probate  Code,  sec.  6303;  South  Dakota,  Probate  Code.  sees.  70, 
71;  TTtah.  Rev.  Stats.,  sec.  3800;  Washington,  Ballinger's  Codes,  sec 
6126;  Wyoming,  Eev.  Stats.,  sec.  4629. 


No.  1058. — Executor — Objections  to  His  Appointment. 

[Title  of  Court  and  Estate.] 

Now  comes  Amanda  Wilcox,  widow  of  said  deceased,  and  ob- 
jecting to  the  appointment  of  Henry  Wilson,  executor ;  for  cause 
why  he  should  not  be  appointed  alleges :  That  said  Henry  Wilson 
is  a  man  of  bad  repute;  an  idle  and  dissolute  person  and  is  not 
possessed  of  any  property  whatez'er,  and  his  nam-e  is  not  on  the 
assessment-roll  at  any  place  in  said  state.  That  said  Henry  Wil- 
son has  a  brother  named  Harz'e-y  Wilson,  zvho  zi'cts  a  warm  per- 
sonal friend  of  said  dececkscd,  and  his  constant  companion;  and 


6^6  Nuw  Book  of  Forms, 

a  man  of  good  repute;  a  well-to-do  merchant  and  assessed  in 
said  county  for  property  worth  $100,000.  TImt  deceased  re- 
quested said  Harvey  Wilson  to  serve  as  his  executor  and  notified 
Imn  tlvai  lie  Iwd  appointed  him  executor  without  bonds,  and, 
therefore,  contestant  alleges  tliat  deceased  by  mistake  wrote  the 
name  of  his  executor  Henry  instead  of  Harvey  Wilson.  Where- 
fore, etc.  [at  the  same  time' file  a  petition  for  letters  with  the  will 
annexed]. 

NOTE. — Any  person  interested  may  file  objections  to  granting  letters 
to  the  person  named  as  executor.  At  the  same  time  a  petition  may  be 
filed  for  letters  with  the  will  annexed:  Cal.  C.  C.  P.,  sec.  1351.  Of  course, 
a  contest  in  such  a  proceeding  will  depend  principally  upon  the  fact 
of  the  eligibility  of  Henry  W.;  but  the  fact  that  such  mistake  was 
made  would  naturally  influence  a  judge  to  favor  the  opposition  if  the 
facts  strongly  sustained  the  allegations,  though  not  conclusive  of  its 
absolute  vcritv:  Arizona,  C.  C,  par.  1638;  Idaho,  C.  C.  P.,  sec.  4033; 
Montana,  C.  C.  P.,  sec.  2402;  Nevada,  Comp.  Laws,  sec.  2814;  North 
Dakota,  Probate  Code,  sec.  6306;  South  Dakota,  Probate  Code,  sec.  71; 
Utah,  Rev.  Stats.,  sec.  3800;  Washington,  Ballingcr's  Codes,  sec.  6126; 
Wyoming,  Rev.  Stats.,  sec.  4629. 

No.  1059. — Executors — Acting  One  for  the  Other. 
[Title  of  Court  and  Estate.] 

Whereas,  I  am  one  of  the  two  executors  of  the  last  will  and 
estate  of  H.  B.,  deceased.  Now,  I  hereby  g-ive  my  coexecutor, 
5'.  S.,  authority  to  act  for  me  in  all  matters  pertaining  to  said  es- 
tate the  same  as  if  I  took  part  personally. 

NOTE. — Where  there  are  two  executors  or  administrators  the  act  of 
one  is  effectual  if  the  other  is  absent  from  the  state,  or  laboring  under 
any  legal  disability  from  serving  [serving  a  term  in  a  state's  prison 
would  be  a  disability.]  Or  if  he  has  given  his  coexecutor  or  admin- 
istrator authority,  in  writing,  to  act  for  both.  Whore  there  are  more 
than  two  the  majority  govern:  Cal.  C.  C.  P.,  see.  13.55. 

It  is  a  safe  practice  to  present  such  written  power  to  the  court  in 
which  the  matter  is  pending.  In  such  case  it  will  be  filed,  and  become 
a  permanent  record. 

It  may  not  be  necessary,  but  the  title  to  real  estate  may  be  involved; 
therefore  it  is  prudent  to  cause  such  power  to  be  acknowledged  and 
recorded;  at  least  it  ought  to  be  witnessed:  Arizona,  C.  C,  par.  1642; 
Idaho,  C.  C.  P.,  sec.  4037;  Montana,  C.  C.  P.,  sec.  2406;  Nevada,  ('omp. 
Laws,  sec.  2818;  South  Dakota,  Probate  Code,  sec.  75;  Utah,  Rev.  Stats., 
sec.  3910;  Washington,  BaUinger's  Codes,  sec  6133;  Wyoming,  Rev. 
Stats.,  sec.  4633. 

No.    1060. — Executor — Concealed    or    Embezzled    Property — 
Complaint  to  Court. 

[Title  of  Court  and  Estate.] 

Now  comes  A.  B.,  and  complaining  to  the  court  of  C.  D.  states 
that  he  is  the  appointed,  qualified  and  acting  executor  of  the  last 
will  of  £.  F.,  deceased,  now  in  course  of  administration  in  the 


Executor  and  Administrator.  637 

above-entitled  matter  and  for  cause  of  complaint  states  that  he 
suspects  aforesaid  C.  D.  of  having  concealed  from  complainant, 
as  executor  of  said  will,  one  hundred  sliares  of  San  Francisco 
Cos  and  Electric  Company  corporation  stock.  That  said  stock 
stands  in  the  home  of  deceased  on  the  books  of  said  corporation, 
but  was  not  indorsed  by  him.  That  deceased  kept  said  stock  in 
a  drawer  in  his  desk,  and  the  day  after  his  death  complainant  saw 
the  said  C.  D.  examining  the  said  drawer,  which  was  not  locked. 
Since  then  said  stock  cannot  be  found.  That  said  C.  D.  is  now 
in  the  county  of  Butte,  California. 

Wherefore  complainant  prays  that  the  said  C.  D.  may  be  cited 
to  appear  before  this  court,  that  he  may  be  examined  under  oath 
upon  the  matter  of  the  aforesaid  complaint. 

NOTE. — Under  the  circnmstanccs  stated  in  the  above  complaint,  or 
when  a  person  is-  suspected  to  have  concealed,  embezzled,  smuggled, 
conveyed  away,  or  disposed  of  any  money,  goods  or  chattels  of  a  de- 
cedent, or  has  in  his  possession  any  conveyances,  bonds,  contracts,  or 
other  writings  which  contain  evidence  of  title  to  property,  or  or  any 
lost  will,  he  may  be  cited  to  appear  and  be  examined  as  to  such  prop- 
erty upon  complaint  of  any  interested  person:  Cal.  C.  C.  P.,  sec.  1459; 
Arfzona,  C.  C.  P.,  par.  1722;  Idaho,  C.  C.  P.,  sec.  4116;  Montana,  C.  C. 
]*.,  sec.  2571;  Nevada,  Comp.  Laws,  sec.  2882;  North  Dakota,  Probata 
Codes,  sees.  6373-6379;  Oregon,  Codes  and  Statutes,  see.  1148;  South 
Dakota,  Probate  Code,  sees.  149-152;  Utah,  Rev.  Stats.,  sec.  3927;  Wash- 
ington, Ballinger'a  Codes,  see.  6212;  Wyoming,  Eev.  Stata.,  sec  4690. 


No.   io6i. — Executor — Account  to  Render — To  be  Arrested. 
[Title  of  Court  and  Estate.] 

This  court  having  made  an  order  that  C.  D.  appear  before  this 
court  on  this  day  and  render  an  exhibit  showing  the  amount  of 
money  received  and  expended  by  him  since  the  date  of  the  filing 
of  his  first  account,  and  he  not  appearing  and  filing  said  exhibit 
as  commanded :  It  is  ordered  that  a  warrant  of  arrest  for  the  said 
C.  D.  be  issued  by  the  clerk  of  this  court  and  delivered  to  the 
sheriflF  of  this  county  of  Alameda,  and  that  said  sheriff  arrest  said 
C.  D.  and  bring  him  forthwith  before  this  court 

NOTE. — If  such  exhibit  is  not  made  as  directed,  attachment  may  be 
issued  against  the  administrator  and  such  exhibit  enforced:  Cal.  C.  C. 
P.,  sec.  1627. 

If  an  administrator  is  delinquent  in  filing  his  annual  account,  he  will 
not  be  attacked  until  after  citation  has  issued;  but  when  he  has  been 
ordered  to  render  an  exhibit  under  sections  1624,  1625.  he  may  be  ar- 
rested if  he  disobeys:  Arizona,  C.  C,  par.  1856,  1857,  1859;  Idaho,  C.  C. 
P.,  sees.  1244,  1245,  1247;  Montana,  C.  C.  P.,  sees.  2782,  27S3.  2785; 
North  Dakota,  Probate  Code,  sees.  6362-6371,  6487-6491,  6493;  Oregon, 
Codes  and  Statutes,  sees.  1200,  1210;  South  Dakota,  Probate  Code,  sees. 
273,  2V5,  277;  Washington,  BalHnger's  Codes,  sees.  6317,  6318,  6320; 
Wyoming,  Eev.  Stats.,  sees.  4714,  4715,  4717. 


638  New  Book  of  Forms. 

No.  1062, — Executor — Lease,  Court's  Order  for, 
[Title  of  Court  and  Estate.] 

This  lease,  made  this  jd  day  of  June,  IQ06,  by  authority  of  the 
order  of  the  superior  court  of  the  county  of  Marin,  sitting  in 
probate,  made  on  the  2(Ji  day  of  June,  ipo6,  between  E.  D.,  ad- 
ministrator of  the  estate  of  C.  D.,  deceased,  the  party  of  the  first 
part,  and  G.  H.,  the  party  of  the  second  part,  bears  witness :  That 
tlie  party  of  the  second  part  has  covenanted  to  pay  the  party  of 
the  first  part  $12,000  in  gold  coin  of  the  United  States,  and  the 
party  of  the  first  part  has  agreed  to  execute  and  deliver  to  him 
a  lease  of  the  premises  described  as  follows,  to  wit  [description], 
for  a  term  of  five  years  from  the  date  of  this  writing,  and  the 
partv  of  the  second  part  has  agreed  to  pay  said  $12,000  in  60 
equal  installments  of  $200  each,  and  to  pay  them  on  the  first  day 
of  each  month  in  advance,  and  has  agreed  not  to  sublet  or  assign 
this  lease  without  an  order  of  court  until  said  distribution  is  made 
of  the  property  herein  described.  [And  insert  such  other  cove- 
nants and  conditions  as  the  court's  order  directs.] 

KOTE. — A  certified  copy  of  the  order  must  be  recorded  in  the  county 
in  which  some  part  of  the  property  lies.  No  omission,  error,  or  irregu- 
larity in  the  proceedings  impairs  or  invalidates  the  lease:  CaL  C.  C  P., 
sec.  1579j  Arizona,  C.  C.,  par.   1824. 


No.  1063. — Executor's  Contract  to  Pay  Debt  of  Estate. 
[Title  of  Court  and  Estate.] 

Whereas  A.  B.,  a  creditor  of  the  estate  of  C.  D.,  deceased,  has 
promised  the  undersigned,  executor  of  the  last  will  of  said  C.  D., 
deceased,  that  he  will  not  bring  an  action  to  foreclose  a  mortgage 
he  holds  against  the  estate  of  deceased  upon  the  following  de- 
scribed land  [description],  and  in  consideration  of  said  promise, 
ihe  undersigned  promises  that  he  will  pay  the  amount  due  upon 
said  mortgage  within  two  years  from  the  date  hereof  out  of  his 
own  estate. 

NOTE.— California.  C.  C.  P.,  sec.  1612;  Arizona,  C.  C,  par.  1847,  2696; 
Idaho,  C.  C.  P.,  see.  42.3.5;  Montana,  C.  C.  P.,  sec.  2770;  Nevada,  Comp. 
Laws.  sec.  2963;  North  Dakota,  Probate  Code,  sec.  6478;  Oregon,  Codes 
and  Statutes,  sec.  797;  South  Dakota,  Probate  Code,  sec.  265;  Utah,  Eev, 
fctats.,  see.  2467;  "Washington,  Ballinger's  Codes,  sees.  4576,  6308;  Wy- 
oming, Eev.  Stats.,  sees.  2953,  4706. 


Execution.  S^g 

EXECUTION. 


No.  1064. — Execution  Against  Administrator  upon  Decree  for 
Payment  of   Debts. 

[Title  of  Court  and  Estate.] 

The  People  of  the  State  of  CaHfornia,  to  the  Sheriff  of  the 
County  of  Napa,  Greeting : 

Whereas  on  the  6th  day  of  June,  1906,  a  decree  was  made  by 
the  said  sperior  court  of  the  county  of  Napa  for  the  payment  of 
the  creditors  of  the  estate  of  A.  B.  C,  deceased.  That  E.  F.  C, 
is  one  of  the  creditors  of  said  estate  whose  claim  was  decreed  to 
be  paid,  and  the  amount  decreed  to  be  paid  him  by  H.  I.  J.,  the 
administrator  of  said  estate  is  $3,193.75,  that  being  the  amount 
actually  due  him,  said  £.  F.  G.,  under  said  decree,  and  whereas 
said  decree  is  filed  in  the  clerk's  office  of  said  court,  and  said 
decree  was  docketed  in  said  clerk's  office  on  the  day  and  year 
first  above  written : 

Now,  you,  the  said  sheriff,  are  hereby  required  to  make  the 
said  sums  due  on  the  said  decree,  with  interest  as  aforesaid,  and 
costs  and  accruing  costs  to  satisfy  the  said  decree  out  of  the 
personal  property  of  said  H.  I.  J.,  or,  if  sufficient  personal  prop- 
erty of  said  //.  /.  /.  cannot  be  found,  then  out  of  the  real  prop- 
erty in  your  county  belonging  to  him  on  the  day  whereon  said 
decree  was  docketed  in  the  said  county,  or  any  time  thereafter; 
and  make  return  of  this  writ  within  sixty  days  after  your  receipt 
hereof,  with  what  you  have  done  indorsed  hereon. 

Witness,  etc. 

NOTE. — In  such  cases  the  creditor  may  have  execution  on  the  decree 
as  upon  a  judgment  in  the  court  in  favor  of  each  creditor;  and  the 
"same  proceedings  may  be  had  under  the  execution  as  under  execution 
in  other  cases":  Cal.  C.  C.  P.,  sec.  1649.  In  other  eases  the  decree  or 
judgment  bears  the  statutory  interest,  which  is  not  expressly  allowed  in 
probate  matters.  Section  1649  makes  the  administrator  personally  lia- 
ble to  each  creditor  for  his  allowed  claim,  and  it  seems  that  he  \n 
liable  for  interest  from  the  date  of  the  docketing  of  the  decree:  Alaska, 
Codes,  pt.  4,  c.  87,  sec.  879;  Arizona,  C.  C,  par.  1S81;  Idaho,  C.  C.  P.,  sec 
4265;  Montana,  C.  C.  P.,  sec.  2816;  Nevada.  Comp.  Laws,  sec.  2987;  Ore- 
gon, Codes  and  Statutes,  sec.  1219;  South  Dakota,  Probate  Code,  sec.  297; 
Utah,  Rev.  Stats.,  sec.  3S75;  Washington,  Bollinger's  Codes,  sec  63oy; 
Wyoming,  Rev.  Stats.,  sec.  4732. 


No.    1065. — Execution — Judgment   for   Money. 
[Title  of  Court  and  Estate.] 

[The  same  as  in  the  next  preceding  form  down  to  the  words 
"and  whereas,"  and  conclude  as  follows:] 


640  New  Book  of  Forms. 

And  whereas,  the  judgment-roll  in  the  action  in  which  said 
judgment  was  entered  is  filed  in  the  clerk's  office  of  said  court,  in 
the  city  and  county  of  San  Francisco,  and  the  said  judgment  was 
docketed  in  the  clerk's  office  in  the  said  city  and  county,  on  the 
day  and  year  first  above  written. 

And  the  sum  of  one  thousand  dollars,  with  interest  thereon, 
and  costs  of  suit  taxed  at  fifty-four  dollars,  is  now  (at  the  date 
of  this  ivrit)  actually  due  on  said  judgment. 

Now  you,  the  said  sheriff,  are  hereby  required  to  make  the 
said  sums  due  on  the  said  judgment,  with  interest,  as  aforesaid, 
and  costs  and  accruing  costs,  to  satisfy  the  said  judgment,  in 
gold  coin  of  the  United  States,  out  of  the  personal  property  of 
said  debtor,  or,  if  sufficient  personal  property  of  said  debtor 
cannot  be  found,  then  out  of  the  real  property  in  your  county, 
belonging  to  him  on  the  day  whereon  said  judgment  was  dock- 
eted, in  the  said  county,  or  any  time  thereafter ;  and  make  re- 
turn of  this  writ  within  sixty  (60)  days  after  your  receipt  hereof, 
with  what  you  have  done  indorsed  thereon. 

NOTE.— California,  C.  C.  P.,  sec.  726;  Alaska,  Codes,  pt.  4,  c.  31,  sees. 
265-300;  Arizona,  C.  C.  P.,  par.  2559;  Idaho,  C.  C.  P.,  see.  3534;  Mon- 
tana, C.  C.  P.,  see.  1211;  Nevada,  Comp.  Laws,  sec.  3307;  New  Mexico, 
Comp.  Laws,  sec.  3106;  North  Dakota,  C.  C.  P.,  sec.  5505;  Oregon,  Codes 
and  Statutes,  sec.  215;  South  Dakota,  C.  C.  P.,  sees.  328-343;  Utah,  Rev. 
Stats.,  sec.  3233;  Washington,  Ballinger's  Codes,  sec.  5195;  Wyoming, 
Bev.  Stats.,  sees.  3915-3924. 

No.  1066. — Execution — Deficiency  of  Sale. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California,  to  the  Sheriff  of  the  City 
and  County  of  San  Francisco,  Greeting: 
Whereas,  on  the  sixth  day  of  June,  igo6,  J.  D.,  plaintiff,  re- 
covered a  judgment  in  the  said  superior  court  of  the  city  and 
county  of  San  Francisco,  state  of  California,  against  R.  R.  and 
P.  J.,  defendants,  for  the  foreclosure  of  a  certain  mortgage,  and 
the  sale  of  the  mortgaged  premises,  to  satisfy  the  sum  found 
due  to  the  said  plaintiff  for  principal  and  interest,  to  wit,  the 
sum  of  $g,ooo,  gold  coin  of  the  United  States  of  America,  with 
interest  from  the  date  of  said  judgment,  at  the  rate  of  seven  per 
cent  per  annum,  till  paid,  together  with  the  costs  and  expenses 
of  sale,  as  appears  to  us  of  record;  in  obedience  to  which  judg- 
ment the  said  sheriff  sold  the  said  mortgaged  premises,  and 
applied  the  proceeds  of  sale  as  therein  directed,  and  has  made 
his  return  unto  said  court  that  there  is  a  deficiency  of  such  pro- 
ceeds of  sale,  and  that  there  is  still  due  to  the  plaintiff  the  sum 
of  five  thousand  dollars,  gold  coin  of  the  United  States  of  Amer- 
ica, bearing  interest  at  the  rate  of  seven  per  cent  per  annum  from 
tlie  sixth  day  of  August,  ipo6  (the  date  of  the  said  return). 


Execution.  641 

And  whereas,  the  judp^ment-roll  in  the  action  in  which  said 
judc^ment  was  entered  is  filed  in  the  clerk's  office  of  said  court,  in 
the  city  and  county  of  San  Francisco,  and  the  said  judgment  was 
docketed  in  said  clerk's  office,  in  the  said  city  and  county,  for  said 
balance  or  deficiency,  on  the  sixth  day  of  August,  1906,  against 
R.  R..  the  judgment  debtor,  who  is  by  said  judgment  made  per- 
sonally liable  therefor,  and  the  sum  of  fizr  thousand  dollars,  gold 
coin  of  the  United  States  of  America,  with  interest  at  the  rate  of 
seven  per  cent  per  annum,  from  the  said  date  of  said  docketing, 
is  now  actually  due  on  said  judgment. 

Now,  you,  the  said  sheriff,  are  hereby  required  to  make  the 
said  sum  due  on  the  said  judgment,  with  interest  as  aforesaid, 
and  costs  and  accruing  costs,  to  satisfy  the  said  judgment,  in 
gold  coin  of  the  United  States  of  America,  out  of  the  personal 
property  of  the  said  debtor.  R.  R.,  or,  if  sufficient  personal  prop- 
erty of  said  debtor  cannot  be  found,  then  out  of  the  real  property 
in  your  county  belonging  to  him,  on  the  day  whereon  said  judg- 
ment was  docketed,  in  the  aforesaid  city  and  county,  or  at  any 
time  thereafter ;  and  make  return  of  this  writ  within  sixty  days, 
with  what  you  have  done  indorsed  herein. 

NOTE. — After  sale  on  foreclosure  of  a  mortgage  upon  real  or  per- 
sonal property,  if  the  return  of  sale  shows  that  the  proceeds  are  in- 
sufficient, and  a  balance  still  remains  due,  judgment  can  then  be  dock- 
eted for  such  balance  in  the  office  of  the  court  having  jurisdiction  over 
the  execution,  against  the  defendants  personally  liable  for  the  debt, 
and  it  becomes  a  lien  on  the  real  estate  of  such  judgment  debtor,  as  in 
other  cases  on  which  execution  may  issue:  Cal.  C.  C.  P.,  sec.  726; 
Alaska,  Codes,  pt.  4,  c.  31,  sees.  300,  365;  Arizona,  C.  C,  pars.  2.557- 
25S3;  Idaho,  C.  C.  P.,  sec.  3550;  Montana,  C.  C.  P.,  see.  1212;  Nevada, 
Comp.  Laws,  sec.  3307;  New  Mexico,  Comp.  Laws,  sec.  3106;  North 
DMkota,  C.  C.  P.,  sec.  5505;  Oregon,  Codes  and  Statutes,  sec.  215;  South 
Dakota,  C.  C.  P.,  sees.  328-343;  lUah,  Rev.  Stats.,  sec.  3233;  Washington, 
Ballinger's  Codes,  sec.  5195;  Wyoming,  Rev.  Stats.,  sees.  3915-3924. 

No.  1067. — Execution — Order  of  Sale, 
[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California,  to  the  SherifT  of  the  City 
and  County  of  San  Francisco,  Greeting: 
Whereas,  on  the  sixth  day  of  May,  igo6,  C.  B.  JV.,  the  above- 
named  plaintiff,  recovered  a  judgment  and  decree  in  the  superior 
court  of  the  city  and  county  of  San  Francisco,  state  aforesaid, 
against  /.  /.  /.,  the  defendant,  in  an  action  wherein  the  said  C. 
B.  ]V.  was  plaintiflf,  and  the  said  /.  J.  J.,  defendant,  which  said 
judgment  and  decree  was  on  the  sixth  day  of  May,  1906,  recorded 
in  Judgment-book  B  of  said  court,  at  page  /d,  and  the  roll  filed 
and  judgment  and  decree  docketed  in  the  clerk's  office  thereof, 
and  in  and  by  which  said  judgment  and  decree  it  is  ordered,  ad- 
judged, and  decreed  that  the  lands  and  premises  mentioned  and 
Now  Forms — 41 


642  New  Book  of  Forms. 

described   in   the   said   judgment   and   decree  be    sold   at   public 
auction,  as  in  said  judgment  and  decree  particularly  set  out. 

Now,  therefore,  you  the  said  sheriff,  are  hereby  commanded 
and  required  to  proceed  to  give  notice  for  sale,  and  to  sell  the 
premises  described  in  said  judgment  and  decree,  a  copy  of  which 
is  hereto  annexed  and  made  a  part  hereof,  and  apply  the  proceeds 
of  said  sale  as  in  said  judgment  and  decree  directed,  and  to  make 
and  file  your  report  of  such  sale  with  the  clerk  of  this  court  within 
sixty  days  from  the  date  of  your  receipt  hereof,  and  to  do  all 
things  according  to  the  terms  and  requirements  of  said  judgment 
and  decree  and  the  provisions  of  the  statute  in  such  case  made 
and  provided. 

NOTE.— California,  C.  C.  P.,  sec.  726. 


FINDINGS. 


No.  1068. — Finding — Decision  of  Court. 
[Title  of  Court  and  Cause.] 

This  cause  came  on  regularly  for  trial  on  the  twenty-Hrst  day 
of  August,  igo6,  before  the  court  without  a  jury — a  jury  trial 
having  been  duly  waived  by  the  parties,  and  H.  E.,  Esq.,  appear- 
ing as  attorney  for  plaintiff,  and  C.  H.,  Esq.,  for  defendant,  and 
from  the  evidence  introduced  the  court  finds  the  facts  as  follows, 
to  wit: 

1.  That  on  the  sixteentJi  day  of  May,  igo6,  said  defendant  exe- 
cuted and  delivered  to  plaintiff  the  promissory  note  set  forth  in 
the  complaint  herein. 

2.  That  said  note  was  executed  for  and  in  consideration  of 
$yoo  United  States  gold  coin,  loaned  by  plaintiff  to  defendant  at 
the  date  thereof.  [This  in  the  event  that  want  of  or  failure  of, 
consideration  is  at  issue.] 

3.  That  $250,  and  no  more,  United  States  gold  coin  has  been 
paid  on  account  thereof. 

4.  That  the  amount  or  principal  and  interest  now  due  and  un- 
paid according  to  the  terms  of  said  note,  is  $517.75,  United  States 
gold  coin. 

[Or  (in  lieu  of  i,  2,  j,  4) ;  The  court  finds:  That  all  the  allega- 
tions of  the  complaint  herein  are  true;  or.  The  court  finds  that 
all  the  allegations  of  the  answer  herein  are  true;  or.  That  de- 
fendant made  and  paid  the  note  and  all  the  interest  thereon  be- 
fore action.] 


Findings — Guardian.  643 

As  a  conclusion  of  law  from  the  foregoing  facts,  the  court 
finds  that  plaintiff  is  entitled  to  judgment  for  the  sum  of  $517.75, 
in  United  States  gold  coin,  and  costs  of  suit,  and  it  is  ordered 
that  judgment  be  entered  accordingly;  [or,  that  defendant  is  en- 
titled to  judgment  for  costs;  or,  on  his  counterclaim,  etc.] 

(Signed,  etc.) 

NOTE.— Idaho,  C.  C.  P.,  seca.  3485,  3495;  Montana,  C.  C.  P.,  sec.  1111; 
Nevada,  Comp.  Laws,  sec.  3277;  North  Dnkota,  C.  C.  P.,  sees.  5451- 
5460;  Oregon,  Codes  and  Statutes,  sec.  406;  South  Dakota,  C.  C.  P., 
Bees.  270-278;  Utah,  Rev.  Stats.,  sees.  3169-3177;  Washington,  Ballinger's 
Codes,  sec  5029;  Wyoming,  Rev.  Stats.,  sec.  3660. 


GUAKDIAN. 


No.  1069. — Guardianship,  Letters  of. 
[Title  of  Court  and  Estate.] 

M.  J.,  is  hereby  appointed  guardian  of  the  person  and  estate  of 
W.  J.,  a  minor. 

Witness,  W.  A.  S.,  clerk  of  the  superior  court  of  the  city  and 
county  of  San  Francisco,  with  the  seal  of  the  court  afHxed,  the 
txvclfth  day  of  December,  ipo6. 

Bv  order  of  the  court. 

[Seal]  W.  A.  S. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

I  do  solemnly  swear  that  I  will  perform,  according  to  law,  the 
duties  of  guardian  of  the  person  and  estate  of  W.  J.,  a  minor. 

NOTE. —  rhe  superior  court  of  each  county  may  appoint  giiardians 
for  the  persons  and  estates,  or  either  of  them,  of  minors  who  have  no 
guardian  legally  appointed  by  will  or  deed,  and  who  are  inhabitants 
or  residents  of  the  county,  or  who  reside  without  the  state  and  have 
estate  within  the  county.  Such  appointment  may  be  made  on  the  peti- 
tion of  any  person  on  behalf  of  the  minor,  or  on  the  petition  of  the 
minor,  if  fourteen  years  of  age.  Before  making  such  appointment  the 
court  must  cause  reasonable  notice  to  be  given  to  any  person  haviu» 
the  care  of  such  minor,  and  to  snch  relatives  of  the  minor  residing  in 
the  county  as  the  court  may  deem  proper:  Cal.,  C.  C.  P.,  sec.  1747; 
Alaska,  Codes,  pt.  4,  c.  88,  sec.  888;  Arizona,  C.  C,  par.  1954;  Idaho, 
C.  C.  P.,  sec.  4339;  Montana,  C.  C.  P.,  sec.  2950;  Nevada.  Comp.  Laws] 
sees.  559,  560;  New  Mexico,  Comp.  Laws,  sec.  1434;  North  Dakota, 
Probate  Code,  sec.  6537;  Oregon,  Codes  and  Statutes,  sec.  5259;  South 
Dakota,  Probate  Code,  sec.  306;  Utah,  Rev.  Stats.,  sec.  3994;  Wash- 
ington. Ballinger's  Codes,  see.  6395;  Stats.  1903,  p.  242;  Wyoming. 
Bev.  Stats.,  sec  4866. 


644  New  Book  of  Forms. 

No.  T070. — Guardian,  Nomination  of,  by  Minor. 
[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  of  the  County  of  Alameda. 
I  hereby  nominate  A.  B.,  and  join  in  his  petition  asking  the 
court  to  appoint  him  guardian  of  my  person  and  estate. 

NOTE. — If  a  minor  is  fourteen  years  of  age  he  may  nominate  his 
o\vn  guardian,  and  the  court  is  commanded  to  "accordingly"  appoint 
the  choice  of  a  minor  if  he  approves  of  him:  Cal.,  C.  C.  P.,  sec.  1748. 
If  the  nominee  of  the  minor  is  not  approved  by  the  court,  and  if  the 
minor  neglects  for  ten  days,  after  citation,  to  appoint  a  suitable  guard- 
ian, the  court  may  appoint  one  for  him  as  if  he  were  under  fourteen 
years  of  age:  Id.,  sec.  1749.  In  brief,  a  minor  has  no  absolute  right 
at  any  time  to  choose  his  own  guardian:  Id.,  sec.  1750;  Alaska,  Codes, 
pt.  4,  c.  88,  sec.  889;  Arizona,  C.  C,  par.  2004;  Idaho,  C.  C.  P.,  sec.  4373; 
Montana,  C.  C.  P.,  see.  3007;  Nevada,  Comp.  Laws,  sec.  585;  New 
Mexico,  Comp.  Laws,  sec.  1434;  North  Dakota,  Probate  Code,  sec.  6540; 
South  Dakota,  Probate  Code,  sec.  367;  Wyoming,  Eev.  Stats.,  sec.  4914. 


No.  107 1. — Guardian,  Assent  cf  All  Persons  to  Sale  by. 
[Title  of  Court  and  Estate.] 

We,  the  undersigned,  being  the  father,  mother  and  all  the 
brothers  and  sisters  of  A.  B.,  a  minor,  and  being  all  those  inter- 
ested in  his  estate,  hereby  consent  to  the  making  of  an  order  of 
sale,  and  sale  of  all  that  real  estate  described  as  follows,  to  wit 
[description],  as  prayed  for  in  the  petition  of  C.  D.,  the  guardian 
of  said  A.  B.,  and  which  petition  was  filed  in  said  court  on  June 
3d,  1905- 

NOTE. — Unless  such  consent  is  given  the  court  must  order  notice 
to  be  served  on  the  next  of  kin  and  on  all  persons  interested ;  and  an 
order  may  be  made  to  publish  the  notice.  Such  consent  saves  four 
wreks'  delay  and  saves  the  cost  of  service  and  publication:  Cal.,  C.  C. 
P.,  sees.  1782,  1783;  Alaska,  Codes,  pt.  4,  c.  89,  sees.  918-939;  Arizona, 
C.  C,  pars.  2002,  2003;  Idaho,  C.  C.  P.,  sees.  4371,  4372;  Montana,  C. 
C.  P.,  sees.  3005,  3006;  Nevada,  Comp.  Laws,  584;  North  Dakota,  Pro- 
bate Code,  sees.  6566,  6567;  Oregon,  Codes  and  Statutes,  sees.  5598,  5599; 
South  Dakota,  Probate  Code,  sec.  398;  Washington,  Ballinger's  Codes, 
Bcc.  6413;  Wyoming,  Rev.  Stats.,  sees.  4912,  4913. 


No.  1072. — Guardian,  Consent  to  Sale  by. 
[Title  of  Court  and  Estate.] 

To  the  Honorable  the  Superior  Court: 

The  undersigned,  the  father  and  mother  and  the  only  sister  and 
brother  of  P.  McD.  a  minor,  hereby  consent  to  the  sale  of  the 


Guardian — Indictment  or  Information.  645 

real  estate  described  in  the  petition  of  the  guardian  of  the  per- 
son and  estate  of  said  minor  now  on  file  in  said  court.  We  are 
all  and  the  only  persons  interested  in  said  minor  and  his  estate. 

G.  McD., 

Father  of  said  minor. 

M.  McD., 

Mother  of  said  minor. 

R.  McD., 

Brother  of  said  minor. 

C.  McD., 

His  sister. 

NOTE. — A  copy  of  the  order  must  be  personally  served  on  the  next 
of  kin  of  the  ward,  and  on  all  persons  interested  in  the  estate,  at  least 
fourteen  days  before  the  hearing  of  the  petition  [or  must  be  published 
at  least  once  a  week  for  three  successive  weeks  in  a  newspaper  printed 
in  the  county,  or,  if  there  be  none  printed  in  the  county,  then  in  such 
newspaper  as  may  be  specified  by  the  court  in  the  order.  If  written 
consent  to  making  the  order  of  sale  is  subscribed  by  all  persoTis  inter- 
ested  therein  and  the  next  of  kin,  notice  need  not  be  served  or  pub- 
lished]: Cal.,  C.  C.  P.,  sec.  1783;  Alaska,  Codes,  pt.  4,  c.  89,  sees  924-926; 
Arizona,  C.  C,  par.  203;  Idaho,  C.  C.  P.,  sec.  4372;  Montana,  C.  C.  P., 
Bee.  3006;  Nevada,  Comp.  Laws,  sec.  584;  North  Dakota,  Probate  Code, 
Bees.  6566,  6567;  Oregon,  Codes  and  Statutes,  sec.  559;  South  Dakota, 
Probate  Code,  see.  398;  Wyoming,  Rev.  Stats.,  sec.  4913. 


INDICTMENT  OR  INFORMATION. 


No.   1073. — Indictment  or  Information. 
[Title  of  Court  and  Cause.] 

/.  W.  is  accused  by  the  Grand  Jury  of  the  city  and  county  of 
San  Francisco,  by  this  indictment  [or  by  the  district  attorney  of 
said  county  by  this  information]  of  the  crime  of  murder  [giving 
its  legal  appellation,  such  as  murder,  arson,  or  the  like,  or  des- 
ignating it  as  felony  or  misdemeanor]  committed  as  follows:  The 
said  /.  W.,  on  the  first  day  of  February,  ipo6,  at  the  city  and 
county  of  San  Francisco,  State  of  California  [here  set  forth  the 
act  or  omission  charged  as  an  offense]  contrary  to  the  form,  force, 
and  effect  of  the  statute  in  such  case  made  and  provided,  and 
acii^ainst  the  peace  and  dignity  of  the  people  of  the  state  of  Cali- 
fornia. 

(If  an  information,  say:] 

Names  of  witnesses  examined  before  the  Grand  Jury  on  find- 
ings the   fore£^oing  indictment.      [Here  insert  names.] 

[If  an  information,  say:] 

Names  of  witnesses  examined  before  filing  the  foregoing  in- 
formation.     [Here  insert  names.] 


646  Ne;w  Book  of  Forms. 

indorsement. 
Indictment   [or  information]    for  Murder. 
The  People  of  tlie  State  of  California,  against  /.  IV. 

A  true  bill: 

W.  P., 
Foreman  of  the  Grand  Jury. 

Presented  by  the  foreman  of  the  Grand  Jury  in  the  presence  of 
the  Grand  Jury,  in  open  superior  court  of  the  county  of  Santa 
Barbara,  state  of  California,  and  filed  as  a  record  of  said  court, 
this  third  day  of  May,  1906. 

A.  B.   W.,  Clerk. 

[If  an  information  say:] 

Presented  by  the  district  attorney  in  the  superior  court  of  the 
city  and  county  of  San  Francisco,  state  of  California,  and  filed 
as  a  record  of  said  court  this  third  day  of  May,  igo6. 

A.  B.   W.,  Clerk. 

NOTE. — There  is  no  difference  between  indictment  and  information, 
except  in  name  and  in  the  proceedings  leading  up  to  them.  The  in- 
dictment or  information  must  contain:  1.  The  title  of  the  action,  speci- 
fying the  name  of  the  court  to  which  the  same  is  presented,  and  the 
aame  of  the  parties;  2.  A  statement  of  the  acts  constituting  the  of- 
fense in  ordinary  and  concise  language,  and  in  such  manner  as  to  en- 
able a  person  of  common  understanding  to  know  what  is  intended.  The 
statute  prescribes  a  form,  and  says  they  must  be  substantially  like  it: 
CaL,  Pen,  Code,  sees.  950,  951. 


INVENTORY  AND  APPRAISEMENT. 


No.  1074. — Inventory — Appraisement. 

[Title  of  Court  and  Estate.] 

The  following  is  a  true  inventory  and  appraisement  of  all  fne 
estate  of  T.  J.,  deceased,  which  has  come  into  the  possession  of 
the  undersigned  administratrix: 

Moneys  belonging  to  the  said  deceased,  which  have  come  into  the 
hands  of  the  administratrix $50  00 

REAL,    ESTATE. 

A  certain  lot,  piece,  or  parcel  of  land,  situate,  lying, 
and  being  in  the  city  and  county  of  San  Francisco, 
state  of  California,  and  bounded  and  particularly  de- 
scribed as  follows,  to  wit:  [Description.] 


Inventory  and  Appblaisement.  647 


PERSONAL  ESTATE. 

Household  Furniture; 

J  Parlor  Stove,  appraised  at  the  sum,  etc 20  00 

J  Gold  Watch  and  Chain,  appraised  at  the  sum  of. .  100  00 

2^  Shares  of  the  Zenith  Gold  and  Silver  Mining 

Cotnpany,  appraised  at  $100  per  share 2,500  00 

Appraised  value  of  whole  estate $11,520  00 

The  whole  of  the  estate  mentioned  in  the  fore.q-oinc:  inventory- 
is  community  property,  as  far  as  can  be  ascertained  from  said  ad- 
ministratrix. 

We,  the  undersigned,  duly  appointed  appraisers  of  the  estate 
of  T.  J.,  deceased,  hereby  certify  that  the  property  mentioned  in 
the  foregoing  inventory  has  been  exhibited  to  us,  and  that  we 
appraise  the  same  at  the  sura  of  fourteen  thousand  one  hundred 
and  thirty-seven  dollars  ($14,137)- 

NOTE. — The  executor  or  administrator  mnst  make  and  retnm  to  the 
conrt,  within  three  months  after  his  appointment,  a  true  inventory  and 
appraisement  of  all  the  estate  of  the  decedent,  including  the  homestead, 
if  any,  which  has  come  to  his  possession  or  knowledge:  Cal.,  C.  C. 
P.  sec.  1443.  [It  was  evidently  the  intention  of  the  statute  that  the 
executors,  having  a  presumed  knowledge  of  his,  decedent's  affairs, 
should  place  values  upon  the  property  he  describes  in  his  inventory,  the 
same  as  in  Colorado,  but  the  practice  is  to  leave  the  values  out  to  be 
added  by  the  appraisers.] 

It  must  be  signed  by  the  appraisers,  and  the  executor  or  admin- 
istrator must  take  and  subscribe  an  oath  before  an  officer  authorized 
to  administer  oaths,  that  the  inventory  contains  a  true  statement  of 
all  the  estate  of  the  decedent  which  has  come  to  his  knowledge  and 
possession,  and  particularly  ct  all  money  belonging  to  the  decedent,  and 
of  all  just  claims  of  the  decedent  against  the  affiant.  The  oath  must 
be  indorsed  upon  or  annexed  to  the  inventory;  Id.,  see.  1449. 

To  make  the  appraisement,  the  court,  or  a  judge  thereof,  must  ap- 
point three  disinterested  persons  (any  two  of  whom  may  act),  who  are 
entitled  to  receive  a  reasonable  compensation  for  their  services,  not  to 
exceed  five  dollars  per  day,  to  be  allowed  by  the  court  or  judge.  The 
appraisers  must,  with  the  inventory,  file  a  verified  account  of  their  ser- 
vices and  disbursements:  Id.,  sec.  1444. 

Before  proceeding  the  appraisers  must  subscribe  an  oath,  to  be  attached 
to  the  inventory,  that  they  will  truly,  honestly,  and  impartially  appraise 
the  property  exhibited  to  them  according  to  the  best  of  their  knowl- 
edge and  ability.  They  must  then  proceed  to  estimate  and  appraise  the 
property;  each  article  must  be  set  down  separately,  with  the  value 
thereof  in  dollars  and  cents,  in  figures,  opposite  to  the  articles  respec- 
tively; the  inventory  must  contain  all  of  the  estate  of  decedent,  real 
and  personal,  a  statement  of  all  debts,  partnerships,  and  other  interests, 
bonds,  mortgages,  notes,  and  other  securities  for  the  payment  of  money 
belonging  to  the  decedent,  specifying  the  name  of  the  debtor  in  each 
security,  the  date,  the  sum  originally  payable,  the  indorsements  thereon 


648  New  Book  of  Forms. 

(if  anr),  with  tlieir  dates,  ?.nd  the  sum  which,  in  the  judgment  of 
the  appraisers,  mav  be  collected  on  each  debt,  interest,  or  secnritj 
[the  inventory  must  show,  so  far  as  the  same  can  be  ascertained  by 
the  executor  or  the  administrator,  what  portion  of  the  property  is  com- 
munity property,  and  what  portion  is  the  separate  property  of  the 
decedent]:  Id.,  sec.  1445;  Alaska  Codes,  pt.  4,  c.  82,  sees.  801-808;  Ari- 
zona, C.  C,  pars.  1710,  1711.  1716;  Idaho,  C.  C.  P.,  sees.  4104,  4105,  4110; 
Montana.  C.  C.  P..  sees.  2550,  2551,  2556;  Nevada,  Comp.  Laws,  se^cs. 
2S71,  2^72,  2876;  New  Mexico,  Comp.  Laws,  sees.  1944,  1966,  2021,  2022; 
North  Dakota,  Probate  Code,  sees.  6380-6388;  Oregon,  Codes  and  Stat- 
ntes,  sees.  1139.  1141;  South  Dakota.  Probate  Code,  sees.  138-148;  Utah, 
Ppv.  Sta+s.,  spcs.  3841,  3842,  3844;  Washington.  Ballinger's  Codes,  sees. 
6197,  6201, '6287;  Wyoming,  Kev.  Stats.,  sees.  4680,  4681,  4685. 

No.  1075. — Inventory  and  Appraisement — Money  Only. 
[Title  of  Court  and  Estate.] 

The  following  is  a  true  inventory  of  all  the  estate  of  H.  B., 
deceased,  which  has  come  into  the  possession  of  the  undersigned 
executor,  viz. :  One  thousand  dollars  in  gold  coin  of  the  United 
States,  one  hundred  and  seven  dollars  in  silver  coin  of  the  United 
States,  ten  dollars  in  United  States  legal  tender  notes. 

Total  value  of  $1,117.00. 

NOTE. — The  inventory  must  also  contain  an  account  of  all  moneys 
belonging  to  the  decedent  which  have  come  to  the  hands  of  the  execu- 
tor or  administrator,  and  if  none,  the  fact  must  be  so  stated  in  the  in- 
ventory. [If  the  whole  estate  consists  of  money  there  need  not  be  an 
appraisement,  but  an  inventory  must  be  made  and  returned  as  in  other 
cases]:  Cal.,  C.  C.  P.,  sec.  1446;  Alaska,  Codes,  pt.  4,  c.  82,  sees.  801-808; 
Arizona,  C.  C,  nar.  1713;  Idaho,  C.  C.  P.,  sec.  4107;  Montana,  C.  C.  P., 
sec.  2553:  New  Mexico,  Comp.  Laws,  sees.  1944,  1966,  2021.  2022;  North 
Dakota,  Probate  Codp,  sees.  6380-6388;  Oregon,  Codes  ajid  Statutes,  sec 
1140;  South  Dakota,  Probate  Code,  sees.  138-148. 


No.  1076. — Inventory  and  Appraisement  of  Real  Estate — Af- 
ter Sale. 

[Title  of  Court  and  Estate.] 

It  appearing  to  the  court  that  the  appraisement  of  that  parcel 
of  land  described  in  the  inventory  and  appraisement  described 
as  follows  [description],  was  too  high:  It  is  therefore  ordered 
that  A.  B.,  C.  D.  and  E.  P.  are  appointed  to  reappraise  said 
land  and  file  their  appraisement  thereof  within  three  days  from 
the  date  of  the  order. 

NOTE. — If  the  court  is  satisfied  that  an  appraisement  is  too  high  or 
too  low  it  may  order  real  estate  reappraised.  Frequently  at  a  sale  under 
a  court's  order  real  estate  will  not  sell  for  ninety  per  cent  of  the 
appraisfd  value.  If  so,  the  court  may  cause  it  to  be  reappraised,  and 
after  the  appraisement  confirm  the  sale  reported  before  reappraisement. 


Inventory  and  Appraisement.  649 

It  may  also  he  appraised  before  a  sale  is  made:  Cal.,  C.  C.  P.,  sec.  1550 
Alaska,  Codes,  pt.  4,  c.  82,  sees.  801-808;  Arizona,  C.  C,  par.  1790, 
Idaho,  C.  C.  P.,  sec.  4185;  Montana,  C.  C.  P.,  sec.  2683;  Nevada,  Comp 
Laws,  sec.  2926;  New  Mexico,  Comp.  Laws,  sees.  1944,  1966,  2021,  2022; 
North  Dakota,  Probate  Code,  sees.  6380-6.'?88;  South  Dakota,  Probate 
Code,  sec.  214;  Utah,  Rev.  Stats.,  sec.  3895;  Washington,  Ballinger's 
Codes,  sec.  6464;  Wyoming,  Eev.  Stats.,  sec.  4792. 


No.  1077. — Inventory  and  Appraisement  of  Estate  of  Ward — 

Guardian. 

[Title  of  Court  and  Estate.] 

[The  same  form  as  in  No.  10/4 — Inventory  and  Appraisement 
of  Estates  of  a  Deceased  Person.] 

NOTE. — It  must  be  returned  within  three  months  after  the  guardian 
is  a[)pointod,  and  annually  thereafter.  It  must  be  sworn  to  by  the 
guardian  and  must  be  appraised  by  appraisers,  appointed,  sworn  and 
acting  in  the  manner  provided  for  regulating  the  settlement  of  estates 
of  decedents. 

Such  inventory,  with  the  appraisement,  must  be  recorded  by  the  clerk 
in  a  book  kept  in  his  office  for  that  purpose;  Cal.  C.  C.  P.,  sec.  1773; 
Alaska,  Codes,  pt.  4,  c.  82,  sees.  801-808;  Arizona,  C.  C,  par.  1993;  Idaho, 
C.  C.  P.,  sec.  4362;  Montana,  C.  C.  P.,  sec.  2985;  Nevada,  Comp.  Laws, 
sec.  578;  New  Mexico,  Comp.  Laws,  sees.  1944,  1966,  2021,  2022;  North 
Dakota,  Probate  Code,  sees.  63S0-63S8;  Oregon,  Codes  and  Statutes,  sec. 
5277;  South  Dakota,  Probate  Code,  sec.  388;  Utah,  Rev.  Stats.,  sees! 
4010,  4011;  Washington,  Ballinger's  Codes,  sec.  6505:  Wyomine!  Rev' 
Stats.,  sec.  4903. 


No.    1078. — Inventory   and    Appraisement — Property    Discov- 
ered After  First  Inventory. 

[Title  of  Court  and  Estate.] 

The  following  is  a  true  inventory  and  appraisement  of  all  the 
property  of  H.  B.,  deceased,  which  has  been  discovered  by  the 
undersigTied  executor  and  which  has  come  into  the  possession 
and  knowledge  of  the  undersigned  since  the  date  of  the  filing  of 
the  inventory  and  appraisement  now  on  file  in  the  said  estate,  viz. : 
[Description  of  the  property  if  land  or  personal  property  other 
than  money,  and  stating  tlie  amount  of  money  precisely  as  in  the 
first  inventory.] 

NOTE. — Whenever  property  not  mentioned  in  an  invrntory  filed 
comfs  to  the  possession  or  knowledge  of  an  executor  or  administrator, 
Le  must  cause  the  same  to  be  appraised  in  the  manner  prescribed,  and' 
an  inventory'  returned  within  two  months  after  the  discovery;  anil  the 
making  of  such  inventory  may  be  enforced,  after  notice,  by  attachment 
or  removal  from  oflice:  Cal.,  C.  C.  P.,  sec.  1451;  Alaska,  "Codes  pt  4 
c.  82,  sees.  801-808;  Arizona,  C.  C,  par.  1718;  Idaho,  C.  C.  P,^  sec   411"' 


650  New  Book  of  Forms. 

Montana,  C.  C.  P.,  sec.  2558;  Nevada,  Comp.  Laws,  sec.  2878;  New 
Mexico,  Comp.  Laws,  sees.  1944,  1966,  2021,  2022;  North  Dakota,  Pro. 
bate  Code,  sees.  6380-6388;  Oregon,  Codes  and  Statutes,  sees.  384,  1146; 
South  Dakota,  Probate  Code,  sees.  138-148;  Washinojton,  Ballinger'a 
Codes,  sees.  5698,  6209;   Wyoming,  Rev.  Stats.,  sec.  4681. 


No.    1079. — Inventory  and  Appraisement — Supplemental. 
[Title  of  Court  and  Estate.] 

The  undersigned  appointed  to  make  a  special  appraisement  of 
the  interest  of  said  estate  in  the  partnership  formerly  existing 
between  said  deceased  and  /.  /.,  in  the  wholesale  grocery  store. 
No.  I2y6^  Market  street,  San  Francisco  [and  so  as  to  any  other 
property] ,  report  that  we  have  performed  that  duty,  and  we 
value  said  at  nine  thousand  two  hundred  dollars.  We  also  rec- 
ommend that  said  interest  be  sold  as  soon  as  practicable. 

NOTE. — California,  C.  C.  P.,  sec.  1451;  Alaska,  Codes,  pt.  4,  c.  82, 
Bees.  801-808:  Arizona,  C.  C,  pax.  1718;  Idaho,  C.  C.  P.,  sec.  4112; 
Montana,  C.  C.  P.,  sec.  2552;  Nevada,  Comp.  Laws,  sec.  2878;  New  Mex- 
ico, Comp.  Laws,  sees.  1944,  1966,  2021,  2022;  North  Dakota,  Probate 
Code,  sees.  6380-6388;  Oregon,  Codes  and  Statutes,  sec.  1146;  South 
Dakota,  Probate  Code,  sec.  1461;  Washington,  Ballinger's  Codes,  sec. 
6209;  Wyoming,  Eev.  Stats.,  sec.  4687. 


No.    1080. — Inventory    and    Appraisement — Bill    of,    by    Ap- 
praisers. 

[Title  of  Court  and  Estate.] 

To  P.  H.,  B.  B.  and  IV.  L.  C,  Appraisers,  Dr. 

To  compensation  for  services  in  appraising  said  estate,  items 
as  follows: 

Two  days'  services,  at  $5.00  day  each   $^0  00 

Necessary  disbursements,  as  follows: 
Fare  to  lot  No.  6go  and  return ^0 


Verified. 


$30  30 


NOTE. — California,  C.  C.  P.,  sec.  1444;  Alaska,  Codes,  pt.  4,  c.  82, 
sees.  801-808;  Arizona,  C.  C,  par.  1711;  Idaho,  C.  C.  P.,  sec.  4105;  Mon- 
tana, C.  C.  P.,  sec.  2551;  Nevada,  Comp.  Laws,  sec.  2872;  New  MexiVo, 
Comp.  Laws,  sees.  1944,  1966,  2021,  2022;  North  Dakota,  Probate  Code, 
Bees.  6380-6388;  Oregon,  Codes  and  Statutes,  see.  1141;  South  Dakota, 
Probate  Code,  sec.  139;  Utah,  Hev.  Stats.,  sec.  3842;  Washington,  Bal- 
linger'a Codes,  sec.  6202;  Wyoming,  Eev.  Stats.,  sec.  4681. 


JUDGMIiNt.  651 


JUrG^NtENT. 


No.    1081. — Judgment — Divorce — Interlocutory. 
[Title  of  Court  and  Cause.] 

It  appearing  to  the  court  that  defendant,  A.  S.  B.,  was  duly 
served  with  summons  herein  and  that  lie  has  failed  to  appear  and 
anszver  within  the  time  allowed  by  lazv,  and  his  default  has  been 
entered,  and  the  cause  coming  on  to  be  heard  this  ^d  day  of  June, 
A.  D,  jpo6,  upon  the  evidence  on  the  part  of  the  plaintiff,  and 
the  matter  having  been  submitted  for  judgment,  and  the  court 
hazing  considered  all  the  evidence,  from  which  it  appears  that 
all  the  material  allegations  cf  the  complaint  are  true,  and  such 
is  found  to  be  the  fact,  and  all  and  singular  the  law  and  the  prem- 
ises being  by  the  court  understood  and  considered. 

Therefore,  it  is  hereby  determined,  that  plaintiff,  C.  C.  B., 
ought  to  be  granted  a  divorce  from  defendant,  A.  S.  B.,  and  she 
is  entitled  to  a  divorce  from  him  upon  the  ground  of  extreme 
cruelty;  she  to  have  the  custody  of  the  child,  C.  S.  B.,  until  the 
further  order  of  this  court. 

Done  in  open  court,  this  Gth  day  of  June,  A.  D.  /po(5. 

NOTE. — In  actions  for  divorce  the  court  f.les  its  decision  and  con- 
clusion of  law.  If  divorce  is  denied,  final  judgment  is  immediately  en- 
tered. If  divorce  ought  to  be  granted,  his  interlocutory  judgment  is 
entered  declaring  that  the  prevailing  party  is  entitled  to  a  divorce. 
Apjieal  may  then  be  taken,  within  six  months  after  the  iiiterlocutory 
judgment  is  Ci-.tered,  in  the  same  manner  and  with  like  effect  as  if 
the  .judgrnont  were  final.  If  appeal  is  not  taken  final  judgment  is  en- 
tered at  the  expiration  of  one  year  from  the  entry  aforesaid:  GaL,  C 
C,  sees.  131,  132. 


No.   i;>82. — Judgment — Divorce — FinaL 
[Title  of  Ccurt  and  Cause.] 

It  appearing  to  the  court  that  defendant,  A.  B.  C,  was  duly 
served  with  summons  herein  [the  same  as  in  the  interlocutory 
judgment],  and  the  cause  coming  on  to  be  heard  this  jd  day  of 
June,  1905,  and  [the  same  as  in  the  interlocutory  judgment], 
from  which  it  appears  that  all  the  material  allegations  of  the 
complaint  are  true,  and  [the  same  as  in  the  interlocutory  judg- 
ment] and  all  and  singular  the  law  and  the  premises  being  by  the 
court  understood  and  considered. 

Wherefore,  it  is  hereby  ordered,  adjudged,  and  decreed  that 
tlie  marriage  between  the  plaintiff,  E.  F.  G.,  and  the  defendant. 


652  Nf'VV   BCOK  OF  FCRMS. 

A.  B.  C,  be  dissolved,  ar.d  the  same  is  hereby  dissolved  upon 
the  ground,  of  extreme  cruelty  inflicted  by  the  said  A.  B.  C.  upon 
the  said  E.  F.  G.,  and  the  said  parties  are  after  the  entry  of  this 
decree  each  restored  to  the  status  of  single  persons. 
Done  in  open  court,  this  ^th  day  of  August,  A.  D.  ipo6 
I  hereby  certify  that  the  decree  of  which  the  within  is  a  true 
copy  v/as  entered  in  book  "A.  B."  of  Divorcss,  on  the  2^th  day 
of  July,  1904. 

NOTE.— California,  C.  C,  sees.  131,  132. 


No.   1083. — Judgment — Divorce — Final    (Another  Form). 
[Title  of  Court  and  Cause.] 

Whereas,  on  the  6th  day  of  June,  A.  D.  igo6,  this  court  made 
its  interlocutory  judgment,  finding  that  the  plaintiff,  C.  S.  B., 
ought  to  be  granted  a  divorce  from  defendant,  A.  S.  B.;  and 
zvhereas  it  appears  that  said  interlocutory  judgment  was  entered 
on  the  8th  day  of  June,  igo6;  and  now,  one  year  having  expired 
since  the  entry  of  said  interlocutory  j'ldgment,  and  it  appearing 
to  the  court  that  there  is  no  reason  why  said  interlocutory  judg- 
ment should  not  become  final ;  and  all  and  singular,  the  law  and 
the  facts,  being  by  this  court  understood  z.rA  considered — 

It  is  hereby  ordered,  adjudged  and  decreed,  that  the  marriage 
between  the  plaintiff,  C.  S.  B.,  and  the  defendant,  A.  S.  B.,  be 
dissolved,  and  the  same  is  hereby  dissolved  upon  the  ground  of 
extreme  cruelty,  and  the  said  parties  are  after  tbe  entry  of  this 
decree  each  restored  to  the  status  of  single  persons. 

Done  in  open  court,  this  loth  day  of  Jvne,  A.  D.  ipo/. 

NCTE. — California,  C.  C,  sacs.  ISl,  132. 


No.   10^4. — Judgment — CJcnfession 
[Title  of  Court  and  Cause.] 

I,  R.  R.,  of  Oroville,  county  of  Butte,  state  cf  California,  do 
hereby  confess  judgment  herein  in  favor  of  /.  D.  of  Quincy, 
county  of  Plumas,  state  of  California,  for  the  sum  of  $6^0,  gold 
coin  of  the  United  States,  and  authorize  judgment  to  be  entered 
therefor  against  me,  with  legal  interest  thereon  from  this  date. 

This  confession  of  judgment  is  for  a  debt  justly  due  and  owing 
to  the  said  /.  D.,  arising  upon  the  following  facts,  to  wit : 

At  various  times  betivcen  the  twentieth  day  of  September, 
jgo6,  and  the^Hfteenth  day  of  September,  ipo6,  I  received  for  the 
use  and  benefit  of  the  said  J.  D.,  and  from  one  J.  S.,  divers  sums 
of  money,  gold  coin  of  the  United  States,  amounting  in  the  ag- 
gregate to  said  sunt  of  $6j^o,  no  part  of  which  has  ever  been  paid 
to  said  J.  D.,  and  it  is  now  due. 


JUDCMF.XT.  653 

State  of  California, 
County  of  Butte, — ss. 

R.  R.,  being  duly  sworn,  says  that  he  is  the  person  who  sij^-ned 
the  above  statement,  and  that  he  is  indebted  to  the  said  /.  D.  in 
the  sum  of  $6jO,  gold  coin  of  the  United  States,  in  said  state- 
ment mentioned ;  that  there  are  no  offsets  to  the  same,  and  that 
the  facts  stated  in  the  above  confession  and  statement  are  true. 

NOTE. — A  judgment  by  confession  may  be  entered  without  actioa 
either  for  money  due  or  to  become  due,  or  to  secure  any  person  ag.-iinst 
contingent  liability  on  behalf  of  the  defendant,  or  both,  in  the  man- 
ner prescribed  by  this  chapter.  Such  judgment  may  be  entered  in  any 
court   having  jurisdiction  for  like  amounts. 

A  statement  in  writing  must  be  made,  signed  by  the  defendant,  and 
verified  by  his  oath,  to   the  following  effect: 

1.  It   must   authorize   the   entry  of  judgment  for  a  specified  sum; 

2.  If  it  be  for  money  due,  or  to  become  due,  it  must  state  concisely 
the  facts  out  of  which  it  arose,  and  show  that  the  sum  confessed  there- 
for is  justly  due,  or  to  become  due; 

3.  If  it  be  for  the  purpose  of  securing  the  plaintiff  against  a  contin- 
gent liability,  it  must  state  concisely  the  facts  constituting  the  liabil- 
ity, and  show  that  the  sum  confessed  therefor  does  not  exceed  the  same: 
Cal.,  C.  C.  P.,  sees.  1132,  1133;  Alaska,  Codes,  pt.  4,  c.  21,  sees.  241- 
247;  Arizona,  C.  C,  par.  1437;  Idaho,  C.  C.  P.,  sec.  3957;  Montana,  C. 
C.  P.,  sees.  2040-2043;  Nevada,  Com  p.  Laws,  sees.  3454-3456;  New  Mex- 
ico, Comp.  Laws,  sees.  3077-3084;  North  Dakota,  C.  C.  P.,  sec.  6130;  ;; 
Oregon,  Codes  and  Statutes,  sees.  186-192,  199-201;  South  Dakota  c' 
C.  P.,  sees.  309.  7S4-7SG;  Utah,  Rev.  Stats.,  sees.  3213-3215;  Washington^  ' 
Ballinger's  Codes,  sees.  5094,  5095,  5099:  Wyoming,  Rev.  Stats.,  sees' 
3617,  3763,  3764. 


No.  1085. — Judgment — Entry  of  Confession  oL 

[Title  of  Court  ?.nd  Cause.] 

In  this,  R.  R.,  having-  filed  his  confession  cf  judgment,  wherein 
he  authorizes  and  consents  that  judgment  be  entered  in  favor  of 
/.  D.,  for  the  sum  cf  $6^^o,  geld  coin  of  the  United  States;  there- 
fore, by  reason  cf  the  hw  and  the  premises  aforesaid,  it  is  or- 
dered and  adjudged,  that  the  said  /.  D.  do  have  and  recover  of 
and  from  the  said  R.  R.  the  sum  of  $630,  gold  coin  of  the  United 
States,  with  interest  thereon,  at  the  rate  of  sez'en  per  cent  per 
annum,  from  the  date  hereof  until  paid,  together  with  the  sura 
of  ten  dollars  costs  herein. 

NOTE.— California,  C.  C,  P.,  sec  1133.  See  "Confession  of  Judff- 
ment."  ^ 

No.  1086. — Judgment  by  Court. 
[Title  of  Court  and  Cause.] 

This  cause  came  on  regularly  for  trial  on  the  nmefcenth  day 
of  October,  1906,  J.  B.,  Esq.,  appearing  as  counsel  for  plaintiff. 


654  Nsw  Book  of  Forms. 

and  C.  T.,  Esq.,  for  the  defendant.  A  trial  by  jury  having  been 
waived  by  the  parties,  the  cause  was  tried  before  the  court  with- 
out a  jury,  whereupon  witnesses  on  the  part  of  plaintiff  and  de- 
fendant were  duly  sworn  and  examined,  and  documentary  evi- 
dence introduced  by  respective  parties,  and  the  evidence  being 
closed,  the  cause  was  submitted  to  the  court  for  consideration 
and  decision;  and,  after  deliberation  thereon,  the  court  files  its- 
finding  and  decision  in  writing,  and  orders  that  judgment  be  en- 
tered herein  in  favor  of  plaintiff  in  accordance  therewith. 

Wherefore,  by  reason  of  the  law  and  the  finding  aforesaid,  it 
is  ordered,  adjudged  and  decreed,  that  /.  D.,  the  plaintiff,  do  have 
and  recover,  of  and  from  R.  R.,  the  defendant,  the  sum  of  $800, 
inth  interest  thereon  at  the  rate  of  seven  per  cent  per  annum 
from  the  date  hereof  until  paid,  together  with  said  plaintiff's 
costs  and  disbursements  incurred  in  this  action,  amounting  to 
the  sum  of  thirty-five  dollars. 

Judgment  recorded  October  24,  igo6,  in  book  "B,"  page  67. 

NOTE.— California,  C.  C.  P.,  seca.  664,  668. 

No.    1087. — Judgment — Default—Clerk. 

[Title  of  Court  and  Cause.] 

In  this  action  the  defendant,  R.  R.,  having  been  regularly 
served  with  process,  and  having  failed  to  appear  and  answer  the 
plaintiff's  complaint  filed  herein,  the  legal  time  for  answering 
having  expired,  and  no  answer  or  demurrer  having  been  filed, 
the  default  of  the  said  defendant,  R.  R.,  in  the  premises  having 
been  duly  entered  according  to  law;  upon  application  of  said 
plaintiff  to  the  clerk,  and  in  pursuance  of  the  prayer  of  said  com- 
plaint, it  is  ordered  and  adjudged  that  the  said  plaintiff  do  have 
and  recover  from  the  said  defendant  judgment  for  the  sum  of 
$560,  gold  coin  of  the  United  States,  with  interest  thereon  at  the 
rate  of  seven  per  cent  per  annum  from  the  date  hereof,  till  paid, 
together  with  said  plaintiff's  costs  and  disbursements  incurred  in 
this  action,  amounting  to  the  sum  of  $46. 

Judgment  rendered  April  26,  i(po6. 

Clerk's  Office  of  the  Superior  Court 
Of  the  State  of  California,  County  of  Santa  Barbara, — ss, 

I,  the  undersigned,  clerk  of  said  court,  do  hereby  certify  the 
foregoing  to  be  a  full,  true,  and  correct  copy  of  the  judgment 
entered  in  the  above-entitled  action,  and  of  the  whole  thereof. 
•     Attest  mv  hand  and  the  seal  of  said  court,  this  twenty-sixth 
day  of  April,  1906. 

NOTE. — Judgment  may  be  had,  if  the  defendant  fail  to  answer  the 
complaint:  1.  In  an  action  arising  upon  contract  for  the  recovery  of 
money,  if  no  answer  has  been  filed  in  time,  the  clerk,  upon  application 


Judgment.  655 

of  the  plaintiff,  mnst  enter  the  default  of  the  defendant,  and  immedi- 
ately enter  jadffmcnt  for  the  amount  spofifiod  in  the  summons,  and 
costs.  2.  In  other  aetions,  if  no  answer  has  been  filed  within  the  time 
the  clerk  must  enter  the  default;  and  thereafter  the  plaintiff  may  apply 
at  any  time  to  the  court  for  the  relief  demanded.  If  the  taking  of 
an  acconnt,  or  the  proof  of  any  fact,  is  necessary,  the  court  may  taka 
the  account  or  hear  the  proof;  or  may  order  a  reference  for  that  pur- 
pose. And  where  the  action  is  for  the  recovery  of  damages,  the  court 
may  order  the  damages  to  be  assessed  by  a  jury;  or,  if  to  determine 
the  amount  of  damages,  the  examination  of  a  long  account  be  involved, 
by  a  reference  as  above  provided.  3.  In  actions  where  the  service  of 
the  ffummons  was  by  publication,  the  plaintiff  may,  upon  proof  of  the 
publication,  and  that  no  answer  has  boen  filed,  apply  for  judf^ment- 
and  the  court  must  thereupon  require  proof  to  be  made  of  the  demand* 
and  if  the  defendant  be  not  a  rpsidont  of  the  state  must  require  the 
plaintiff,  or  his  agent,  to  be  examined  on  oath,  respecting  any  payments 
that  have  been  made  to  the  plaintiff,  or  to  anyone  for  his  use,  on  ac- 
count of  sneh  demand,  and  may  render  judgment:  Cal.,  C.  C.  P.,  sec. 
585;  Alaska,  Codes,  pt.  4,  c.  2.51-259;  Arizona,  C.  C,  pars.  14.35-1441  •' 
Idaho,  C.  C.  P.,  sec  3501;  Montana,  C.  C.  P.,  sec.  1020;  Nevada,  Comp! 
Laws,  sec.  3247;  New  Mexico,  Comp.  Lnws,  sees.  2f)S5-30r)8;  North 
Dakota,  C.  C  P.,  sees.  .5412-5414;  Oregon,  Codes  and  Rtntntes,  sec  185- 
South  Dakota,  C.  C.  P.,  sees.  2.37,  238;  Utah,  Eev.  Stats.,  "sec  3179.' 
Wyoming,  Eev.  Stats.,  sees.  3761-3766. 


No.   1088. — Judgment — Default — Court. 

[Title  of  Court  and  Cause.] 

In  this  action  the  defendant,  R.  R.,  having  been  served  with 
process,  and  having  failed  to  appear  and  answer  the  plaintiff's 
complaint  filed  herein,  and  the  time  for  answering  having  ex- 
pired, and  no  answer  or  demurrer  having  been  filed,  the  default 
of  said  defendant,  R.  R.,  in  the  premises  having  been  duly  en- 
tered according  to  law ; 

Now.  at  this  day.  on  application  of  7.  M.  W.,  attorney  for  said 
plaintiff,  it  is  hereby  ordered  that  judgment  be  entered  herein 
against  the  said  defendant,  R.  R.,  as  zuell  as  as^ainst  defendant  J. 
S.,  not  sensed  with  process,  in  accordance  with  the  praver  of 
said  plaintiff's  complaint  on  file  herein. 

Wherefore,  by  reason  of  the  law  and  the  premises  aforesaid, 
it  is  ordered,  adjudged,  and  decreed  that  /.  D.,  plaintiff,  do  have 
and  recover  of  and  from  the  said  defendant,  R.  R.,  the  sum  of 
$360,  United  States  gold  coin,  with  interest  thereon  at  the  rate  of 
scfen  per  cent  per  annum  from  the  date  hereof  until  paid :  to- 
gether with  said  plaintiff's  costs  and  disbursements  incurred  in 
said  action,  amounting  to  the  sum  of  $48.73. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  said 
plaintiff  do  have  execution  against  the  separate  property  of  the 
defendant,  R.  R.,  as  well  as  against  the  joint  property  of  all  the 
said  defendants. 

Judgment  rendered  June  18,  ipo6. 


655  New  Book  of  Forms. 

NOTE. — This  form  of  judgment  is  against  persons  associated  in  any 
biosiness  under  a  common  name:  Cal.  C.  C.  P.,  sec.  .585;  Alaska,  Codes, 
pt.  4,  c.  29,  sees.  251-2.39;  Arizona,  C.  C,  pars.  1435,  1440,  1441;  Mon- 
tana, C.  C.  P.,  sec.  1020;  Nevada,  Comp.  Laws,  see.  3247;  New  Mexico, 
Comp.  Laws,  sees.  2685,  3068;  North  Dakota,  C.  C.  P.,  sees.  5412-5414; 
Oregon,  Codes  and  Statutes,  sec.  185;  South  Dakota,  C.  C.  P.,  sees.  237, 
238;  Utah,  Rev.  Stats.,  sees.  3179;  Washington,  Ballinger's  Codes,  sec 
5090;   Wyoming,  Rev.   Stats.,  sees.  3761-3766. 


No.  1089. — Judgment,  Satisfaction  of. 
[Title  of  Court  and  Cause.] 

For  and  in  consideration  of  $1,000  gold  coin  of  the  United 
States,  to  me  paid  by  A.  B.,  the  defendant  in  the  above-entitled 
action,  full  satisfaction  is  hereby  acknowledged  of  a  certain  judg- 
ment rendered  in  said  superior  court,  in  the  said  action,  on  the 
twentieth  day  of  June,  igo6,  in  favor  of  W.  J.  S.,  the  plaintiff  in 
the  said  action,  and  against  the  said  defendant,  for  the  sum  of 
$1,000,  gold  coin  of  the  United  States,  $31  costs  and  disburse- 
ments, and  recorded  in  book  No.  2g  of  Judgments,  at  page  J/^. 
And  I  hereby  authorize  and  direct  the  clerk  of  said  court  to 
enter  satisfaction  of  record  of  said  judgment  in  the  said  action, 

NOTE. — It  may  be  done  by  the  debtor  or  his  attorney  by  indorsement 
on  the  margin  of  the  record:  Cal.  C.  C.  P.,  sec.  675;  or  by  acknowledg- 
ment in  the  manner  of  a  conveyance:  Id.,  sec.  675.  An  attorney  may 
do  the  same  for  his  client:  Id.,  sec.  286,  upon  payment  and  not  other- 
wise: Arizona,  C.  C.  par.  2886;  Idaho,  C.  C.  P.,  sees.  3095-3514;  Mon- 
tana, C.  C.  P.,  sec.  1201;  Ne\-ada,  Comp.  Laws,  sec.  3305;  New  Mexico, 
Comp.  Laws,  see.  2685;  North  Dakota,  C.  C.  P.,  sec.  5497;  Oregon,  Codes 
and  Statutes,  sees.  936,  937,  1058;  South  Dakota,  C.  C.  P.,  sees.  309-327; 
rtah.  Rev.  Stats.,  sees.  115,  3207;  Washington,  Ballinger's  Codes,  see. 
4702. 

No.   1090. — Judgment,   Verdict  on. 

[Title  of  Court  and  Cause.] 

This  action  came  on  regularly  for  trial.  The  said  parties  ap- 
peared by  their  attorneys,  F.  G.  P.,  Esq.,  counsel  for  plaintiff, 
and  S.  S.  &  H.,  for  defendant.  A  jury  of  twelve  persons  was 
regularly  impaneled  and  sworn  to  try  said  action.  Witnesses  on 
the  part  of  the  plaintiff  and  defendant  were  sworn  and  exam- 
ined. After  hearing  the  evidence,  the  arguments  of  counsel,  and 
instructions  of  the  court,  the  jury  retired  to  consider  of  their 
verdict,  and  subsequently  returned  into  court,  with  the  verdict 
signed  by  the  foreman,  and,  being  called,  answered  to  their 
names,  and  say:  "We,  the  jury  in  this  cause,  find  a  verdict  for 
the  plaintiff,  for  $590." 

Wherefore,  by  virtue  of  the  law,  and  by  reason  of  the  premises 
aforesaid,  it  is  ordered  and  adjudged  and  decreed,  that  said  plain- 


Judgment — Justice's  Coltit.  657 

tiff  have  and  recover  from  said  defendant  the  sum  of  $590,  nnth 
interest  thereon  at  seven  per  cent  per  annum  from  the  date  hereof 
until  paid,  together  with  said  plaintiff's  costs  and  disbursements 
incurred  in  this  action,  amounting  to  the  sum  of  $^0. 

Judgment  recorded  the  eighteenth  day  of  August,  1906,  book 
"B,"  page  30. 

NOTE. — California,  C.  C.  P.,  sec  664;  Alaska,  Codes,  pt  4,  c.  29,  sees. 
251-259;  Arizona,  C.  C,  pars.  1428-1443;  Idaho,  C.  C.  P.,  sec.  3502; 
Montana,  C.  C.  P.,  sec.  1622;  Nevada,  Comp.  Laws,  sec  3294;  New- 
Mexico,  Comp.  Laws,  sees.  2685,  3078-3086;  North  Dakota,  C.  C.  P.,  sees. 
6479-5499;  Oregon,  Codes  and  Statutes,  sec.  151;  South  Dakota,  C.  C 
P.,  sees.  309-327;  Utah,  Rev.  St.its.,  sec.  3191;  Washington,  Ballinger'a 
Codes,  sec  5045;  Wyoming,  Ecv.  Stats.,  sees.  3767-3780. 

No.  logi. — Judgment  that  a  Person  is  Restored    to    Compe- 
tency. 

[Title  of  Court  and  Cause.] 

The  matter  of  the  petition  of  A.  B.  to  be  adjudged,  restored 
to  mental  competency  coming  on  to  be  heard  this  jJ  day  of  June, 
1903,  and  the  matter  having  been  heard  by  the  court  in  manner 
and  form  as  is  by  law  directed,  and  the  matter  having  been  sub- 
mitted for  judgment,  it  is  by  these  presents  adjudged  that  the 
said  A.  B.  is  now  fully  restored  to  mental  capacity,  and  was  re- 
stored to  full  mental  capacity  at  the  time  tlie  said  petition  was 
verified  and  filed. 

NOTE. — Eespecting  the  judicial  determination  of  a  petitioner  for  res- 
toration to  competency  the  statute  reads:  "If  it  be  found  that  the  per- 
son be  of  sound  mind  and  capable  of  taking  care  of  himself  and  his 
property,  his  restoration  to  capacity  shall  be  adjudged."  It  is  unnec- 
essary to  include  the  words  above  quoted  in  the  court's  adjudication  of 
the  fact  of  mental  restoration  to  capacity,  the  statute  (Cal.,  C.  C.  P., 
sec.  1766)  having  defined  the  judicial  meaning  of  the  phrases  "incom- 
petent," "mentally  incompetent,"  and  "incapable"  to  be  equivalent 
to  the  words  above  quoted:  Id.,  sees.  1766,  1767;  Arizona,  C.  C,  par. 
1987;  Idaho,  C.  C.  P.,  sec.  4356;  Montana,  C.  C.  P.,  sec.  2973;  North 
Dakota.  C.  C.  P.,  sec.  1527:  South  Dakota,  Probate  Code,  sec  382;  Wy- 
oming, Rev.  Stats.,  sec  4895. 


JUSTICE'S  COUET. 


No.   1092. — Abstract  of  Judgment, 

[Title  of  Court  and  Cause.] 

Before  A.  B.,  justice  of  the  peace  of  L.  township,  county  of 
Sacramento,  on  the  ^d  day  of  June,  A.  D.  IQ06. 

Judgment  entered  for  plaintiff  for  $2/2.36,  on  the  ist  day  of 
June,  A.  D.  ipoj. 

New  Forms — 42 


653  NiiW  Book  of  Forms. 

I  certify  that  the  foregoing  is  a  correct  abstract  of  a  judgment 
rendered  in  said  action  in  my  court,  held  in  said  county,  town- 
ship and  state  on  June  i,  Jpoj,  as  appears  by  my  docket. 

XOTE. — In  the  following  notes  no  attempt  has  been  made  to  note 
each  form  with  reference  to  the  section  of  the  law  similar  to  that  of 
California,  but  in  all  the  states  and  territories  named  reference  is 
made  only  to  the  first  and  last  section  of  the  codes  governing  proceed- 
ings in  justice 's  courts — civil  and  criminal.  They  resemble  each  other 
but  slightly:  Cal.,  C.  C.  P.,  sec.  897;  Alaska,  Codes,  pt.  2,  c.  41,  sees. 
411-440,  and  pt.  4,  c.  92,  sees.  947-961;  Arizona,  C.  C,  pars.  2046-2115; 
Pen.  C,  pars.  1182-1216;  Colorado,  Mill's  Stats.,  c  74,  p.  1518,  sees, 
2624-2801;  Idaho,  C.  C.  P.,  sees.  3594-3697;  Pen.  C,  sees.  5696-5731,  the 
same  as  in  California;  Montana,  C.  C.  P.,  sees.  1480-1703;  Pen.  C,  sees. 
2680-2725,  the  same  as  in  California;  Nevada  Comp.  Laws,  sees.  3604- 
3684;  Criminal  Practice,  sees.  4561-4594,  the  same  as  in  California; 
iMorth  Dakota,  Justice's  Code,  sees.  6620-6788;  Oregon,  Codes  and  Stat- 
utes, sees.  2193-2300;  South  Dakota,  Justice's  Code,  Codes,  pp.  1074- 
1094;  Utah,  Kev.  Stats.,  sees.  3668-3772;  Criminal  Procedure,  5124-5173, 
the  same  as  in  California;  Washiiiirton,  Ballinger's  Codes,  6542-6754; 
Wyoming,  Eev.  Stats.,  sees.  4316-4529. 


No.   1093. — Action  Transferred — Higher  Court, 

[Title  of  Court  and  Cause.] 

To  the  County  Clerk  of  the  County  of  Nevada,  State  of  Califor- 
nia: 
I  hereby  certify  that  the  accompanying  papers  in  the  above- 
entitled  action  constitute  the  pleadings  and  other  papers  therein, 
to  wit :  The  complaint  and  indorsements  thereon ;  the  s^immons 
and  return  of  service  indorsed  thereon;  the  defendant's  demurrer 
to  the  complaint ;  the  defendant's  answer  to  said  complaint. 
Transferred  from  this  court  because  the  title  to  real  property 
is  involved. 

NOTE.— California,  C,  C.  P.,  sec.  838. 


No.  1094. — Affidavit,  Order  of  Arrest,  for. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Napa, — ss. 

A.  H.,  the  plaintiff  in  this  suit,  being  duly  sworn,  deposes  and 
says:  That  the  said  action  is  for  the  recovery  of  property  con- 
verted to  said  defendant's  own  use,  which  was  received  by  said 
defendant  in  a  fiduciary  capacity,  and  is  pendirig  in  said  court. 

And  deponent  further  states  and  shows  to  the  court,  that  the 
following  are  facts  and  circumstances  out  of  which  said  cause  of 
action  arose:  [State  facts.] 

NOTE.— California,  C.  C.  P.,  sec.  479. 


Justice's  Court.  659 


No,    1095. — Affidavit — Change   of   Place   of   Trial — Interest — 

Prejudice. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

/.  B.,  being  duly  sworn,  says:  That  he  is  the  defendant  in  the 
above-entitled  action  ;  that  he  believes  that  he  cannot  have  a  fair 
and  impartial  trial  before  S.  C,  Esq.,  the  justice  of  the  peace  be- 
fore tvhom  the  summons  herein  is  made  returnable,  by  reason  of 
the  [interest,  prejudice,  or  bias  of  said  justice]  interest  of  said 
justice  in  the  result  of  said  action. 

[See  form  No.  iop6.] 

NOTE.— California,  C.  C.  P.,  sees.  833-838. 


No.  1096. — Affidavit — Transfer  of  Action. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

M.  P.,  the  defendant,  in  the  above-entitled  action,  being  duly 
sworn,  says  that  he  has  reason  to  believe,  and  does  believe,  that 
he  cannot  have  a  fair  and  impartial  trial  before  the  justice  be- 
fore whom  this  action  is  brought,  by  reason  of  the  prejudice  and 
bias  of  the  said  justice.  [State  facts  upon  which  such  belief  is 
founded,  as:  The  said  justice  is  a  partner  of  the  plaintiff;  or  he 
is  interested  in  the  result  of  this  action,  hazing  agreed  with 
plaintiff  that  his  fee  should  abide  the  result.] 

NOTE. — "When  the  justice  is  a  witness,  when  a  fair  trial  cannot  be 
had  before  the  justice,  and  when  a  jury  is  demanded  and  an  affidavit 
ehows  that  a  fair  trial  cannot  be  had  on  account  of  bias  or  the  preju- 
dice of  the  people,  etc.,  the  place  of  trial  may  be  changed:  Gal..  C.  C  P. 
Bees.   8S3,   838.  . 


No.    1097. — Affidavit — Attachment    Against    Resident, 

[Title  of  Court  and  Cause.] 

State  of  California, 

County  of  Los  Angeles, — ss. 

H.  A.  S.,  being  duly  sworn,  says  that  he  is  the  plaintiff  in  the 
above-entitled  action ;  that  the  defendant,  S.  A.  H.,  in  said  action, 
is  indebted  to  the  plaintiff  in  tlie  sum  of  oft^  hundred  dollars,  gold 


66o  New  Book  of  Forms. 

coin  of  the  United  States,  over  and  above  all  legal  setoffs,  or 
counterclaims,  upon  an  express  contract  for  the  direct  payment  of 
money,  to  wit: 

On  a  certain  promissory  note  for  one  hundred  dollars,  hearing 
date  January  12,  1907,  payable  thirty  days  after  date,  without 
grace. 

And  that  such  contract  was  made  and  is  payable  in  this  state, 
and  the  payment  of  the  same  has  not  been  secured  by  any  mort- 
gage or  lien  upon  real  or  personal  property,  or  any  pledge  of  per- 
sonal property;  and  that  the  said  attachment  is  not  sought,  and 
the  said  action  is  not  prosecuted  to  hinder,  delay,  or  defraud  any 
creditor  of  the  defendant. 

IN'OTE. — California,  G.  C.  P^  sees,  538,  866. 


No.  1 098. — Affidavit — Justice — Witness. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

A.  G.  L.,  the  defendant  in  the  above-entitled  action,  being  duly 
sworn,  says  that  M.  A.,  Esq.,  the  justice  of  the  peace  for  San 
Mateo  township,  in  said  county,  who  issued  the  order  of  arrest 
herein,  is  a  material  witness  for  defendant  herein ;  that  he  expects 
to  prove  by  said  M.  A.,  Esq.,  that  the  plaintiff  herein,  previous 
to  the  making  of  said  order  of  arrest,  while  being  examined  as  a 
witness  m  the  case  of  A.  B.  v.  C.  D.,  then  on  trial  before  the  said 
M.  A.,  Esq.,  justice  of  the  peace,  testified  that  he  knew  this  de- 
fendant was  about  to  leave  the  state  of  California,  by  the  way  of 
Panama,  for  the  purpose  of  proceeding  to  Washington,  D.  C,  to 
secure  a  patent  on  a  double-scouring,  complex  soaping  and  am- 
moniacal  sidphurated,  bleaching,  long-handled  washing  machine; 
and  that  the  plaintiff  was  the  patentee  of  a  rival  machine  for  ac- 
complishing the  same  purpose,  and  that  he  intended  to  do  his  best 
to  keep  defendant  away  from  said  city  of  Washington. 

NOTE.— California,   C.   C.  P.,   sees.   833-838. 

No.    1099. — Affidavit — Change    of    Place    of    Trial — Bias    or 
Prejudice  of  Citizens. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

/.  B.,  being  duly  sworn  [as  in  the  preceding"] :  That  a  jury  trial 
has  been  demanded  by  the  plaintiff  in  this  action ;  that  he  believes 


Justice's  Court.  66 i 

that  he  cannot  have  a  fair  and  impartial  trial  in  the  township 
and  court  before  which  the  summons  herein  is  made  returnable, 
on  account  of  the  bias  and  prejudice  of  the  citizens  of  said  town- 
ship against  him. 

NOTE,— California,  C.  C.  P.,  Bees.  833-838. 


No.  1 100. — Affidavit — Change    of    Place  of    Trial — Justice    a 

Witness. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

/.  B.,  being  duly  sworn,  says:  That  he  is  the  defendant  in  the 
above-entitled  action ;  that  5".  C,  the  justice  of  the  peace  before 
whom  the  summons  herein  is  made  returnable,  will  be  a  material 
witness  for  the  defendant  herein  at  the  trial  of  said  action ;  that 
this  action  is  one  founded  on  a  promissory  note  made  by  defend- 
ant and  payable  to  plaintiff ;  that  the  only  defense  to  said  action 
is  part  payment  of  said  note  by  defendant;  that  defendant  ex- 
pects to  prove  by  the  said  S.  C,  that  he,  the  said  S.  C,  saw  de- 
fendant pay  plaintiff  the  sum  of  one  hundred  dollars,  after  said 
note  zvas  due,  and  heard  him  direct  plaintiff  to  apply  said  pay- 
ment on  said  note,  and  heard  plaintiff  promise  defendant  that  he 
tvoiild  apply  said  payment  as  directed ;  that  no  other  person  except 
plaintiff,  defendant,  and  said  S.  C,  was  present  when  said  pay- 
ment zvas  made,  and  defendant  is  informed  and  believes,  and 
therefore  avers,  that  plaintiff  disputes  said  payment. 

NOTE.— California,  C.   C.  P.,  sees.  833-838. 


No.  iioi. — Affidavit — Set  Aside  Default, 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

A.  B.  C,  the  defendant  herein,  deposes  and  says:  That  he  is 
the  defendant  herein  ;  that  the  summons  in  this  action  was  served 
on  him  on  the  third  day  of  June,  igo'j :  that  on  the  dav  on  which 
he  should  appear  as  commanded  by  said  summons  he  did  appear 
as  commanded,  and  offered  to  make  answer  to  the  complaint 
herein;  that  he  was  then  informed  by  A.  L.,  Esq.,  the  justice  of 
the  peace  presiding  in  said  court,  that  judgment  by  default  had 
been  entered  against  him  on  the  previous  day,  and  for  that  rea- 
son he  was  prevented  for  answering  therein  [that  he  has  fullv 
and  fairly  stated  the  case  in  tJiis  cause  to  A.  IV.,  his  counsel,  who 


662  New  Book  of  Forms. 

resides  at  Blaektoivn,  county  of  Butte,  and  after  such  statement 
he  is  advised  by  him  that  he  has  a  good  and  substantial  defense 
on  the  merits  of  this  action,  and  verily  believes  the  same  to  be 
true.] 

NOTE.— California,  C.  C.  P.,  sec.  859. 


No.   1 102. — Affidavit — Continuance. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

A.  B.,  being  duly  sworn,  says:  That  he  is  the  defendant  in  the 
above-entitled  action;  that  he  cannot  safely  go  to  trial  before 
ninety  days  from  the  date  hereof,  on  account  of  the  absence  of 
A.  L.,  who  is  a  material  witness  for  defendant;  that  a  subpoena, 
in  said  cause  was  duly  issued  on  the  first  day  of  March,  1907,  and 
placed  in  the  hands  of  the  constable  of  said  township  for  service 
on  the  same  day ;  that  on  the  second  day  of  said  month  of  March, 
the  said  subpoena  was  by  said  constable  duly  served  on  the  said 
A.  L.,  in  said  township;  that  said  subpoena  commanded  the  said 
A.  L.  to  be  present  in  this  court  at  the  hour  of  ten  o'clock  A.  M. 
of  this  day,  to  testify  on  behalf  of  defendant ;_  that  after  said 
subpoena  was  served  the  said  A.  L.  was  taken  violently  sick,  and 
was  removed  from  said  county,  and  is  now  at  Coronado  Beach  in 
the  county  of  San  Diego,  in  said  state,  and  is  too  sick  to  submit 
to  examination  by  deposition;  that  the  evidence  of  the  said  A.  L. 
is  material  for  defendant's  defense;  that  he  will  prove  by  said  wit- 
ness that  [here  state  the  facts  the  witness  will  testify  to].  And 
defendant  says  that  the  said  facts  cannot,  to  his  knowledge,  be 
proved  by  any  other  witness ;  and  that  the  application  is  not  made 
for  delay,  but  that  justice  may  be  done  in  the  premises,  and  affiant 
believes  that,  if  this  case  be  continued  for  three  months,  he  will 
be  able  to  have  said  witness  present  to  testify  as  aforesaid. 

NOTE. In     certain     contingencies,     as     indicated    in    this    form   and    in 

other   cases,   the    trial    may    be   postponed   upon   affidavit   showing   good 
cause:   Cal.,  C.  C.  P.,  sec.  876. 

No.  1 103. — Affidavit— Search-warrant  for. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Sacramento, — ss. 

Personally  appears  before  me  this  ^d  day  of  June,  A.  D.  igo6, 
A.  B.,  who,  on  oath,  makes  complaint,  and  deposes  and  says:  That 


Justice's  Court.  663 

on  the  2d  day  of  June,  A.  D.,  1906,  in  the  county  of  Sacramento, 
state  of  California,  the  crime  of  grand  larceny  was  committed,  to 
wit,  by  C.  D.  (whose  real  name  is  unknown  to  this  complainant), 
who  then  and  there  did  unlawfully  and  feloniously  steal,  take  and 
carry  away  from  a  dzvclling-house,  in  the  city  of  Sacramento, 
county  of  Sacramento,  located  on  K  street,  betzveen  6th  and  jtk 
streets,  and  knozvn  as  number  8p/  K  street,  one  gold  ring,  hav- 
ing a  diamond  of  yellozvish  tinge  or  shade,  weighing  about  one 
caret.  The  ring  represents  a  serpent  with  its  tail  in  its  mouth; 
the  diamond  was  set  in  the  head,  of  the  value  of  three  hundred 
dollars,  and  of  the  personal  goods  and  property  of  A.  B.,  who 
ozvns  and  resides  in  the  aforesaid  house. 

And  this  deponent  further  deposes  and  says:  That  he  has  and 
there  is  just,  probable  and  reasonable  cause  to  believe,  and  that 
he  does  believe,  that  said  personal  goods  and  property  are  now 
concealed  in  the  house  of  L.  M.,  at  number  p  Army  street,  in  said 
city,  knozvn  cls  the  "Palace" ;  all  of  which  is  contrary  to  the  form, 
force  and  effect  of  the  statute  in  such  cases  made  and  provided, 
and  against  the  i^eace  and  dignity  of  the  people  of  the  state  of 
California.  And  this  complainant  prays  that  a  search-warrant 
may  issue  for  the  recovery  of  said  personal  goods  and  property, 
and  that  the  same  may  be  brought  iDcfore  a  magistrate,  and  dis- 
posed of  according  to  law. 

NOTE.— California,  C.  C.  P^  sec.  1525. 


No.     1 104. — Affidavit — Search-warrant — Deposition     on     De- 
mand for. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Sacramento, — ss. 

A.  B.,  being  duly  sworn  and  examined  upon  oath,  testifies  and 
says:  That  he  knows  the  contents  of  the  complaint  and  affidavit 
on  the  other  side  of  this  document,  that  on  the  2d  day  of  June, 
A.  D.  IQ06,  in  the  county  of  Sacramento,  the  property  described 
in  said  complaint  was  feloniously  taken  and  carried  away ;  that 
the  taking  was  not  under  claim  of  right,  and  said  property  was 
then  of  the  value  of  three  liundred  dollars,  and  the  personal  prop- 
erty of  A.  B.,  that  said  property  was  taken  without  the  consent  of 
said  owner;  that  there  is  just,  probable  and  reasonable  cause  to 
believe,  and  that  he  does  believe,  that  said  property  is  now  con- 
cealed in  the  house  of  L.  M.,  the  house  described  in  said  affidavit, 
to  zint,  the  "Palace" ;  that  the  charge  and  facts  set  forth  in  said 
complaint  and  affidavit  are  true  to  the  best  of  his  knowledge  and 
belief. 


664  New  Book  of  Forms. 

NOTE.— California,  C.  C.  P.,  sees.  1525,  1526.  The  above  is  the  pre- 
liminary deposition  taken  at  the  time  the  application  is  made  to  the 
magistrate  for  a  warrant.  If,  when  said  application  is  made  any  in- 
terested person  opposes  the  application  the  magistrate  must  proceed 
to  take  the  deposition  of  the  witness  by  question  and  answer  as  directed 
in  Id.,  sec.  1539. 


No.    1 105. — Affidavit — Substitution    of    Party. 
[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss, 

/.  M.,  being  duly  sworn,  says:  That  he  is  defendant  in  the 
above-entitled  action  [atid  has  been  served  with  summons  therein, 
but  has  not  anszvercd]  ;  that  said  action  is  prosecuted  against  de- 
fendant to  recover  from  him  a  grey  stallion  known  as  "H.  L.  B." ; 
that  one  H.  N.,  not  a  party  to  said  action,  claims  to  own  said 
stallion  and  to  be  entitled  to  his  possession,  and  he  makes  said 
claim  without  any  collusion,  but  in  good  faith ;  and  he  has,  since 
said  action  was  commenced,  demanded  said  stallion  of  defendant ; 
that  affiant  has  no  interest  in  said  stallion  or  in  the  results  of  said 
action. 

Wherefore,  affiant  prays  for  an  order  substituting  said  H.  N. 
as  defendant  herein  in  place  of  affiant,  and  to  discharge  affiant 
from  liability  to  either  party  in  the  action. 

NOTE.— California,  C.   C.  P.,  sees.  336,  338. 


No.  1 1 06. — Affidavit — Redemptioner. 

(Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

A.  B.  C,  being  sworn,  says:  That  he  is  the  owner  [or  agent  of 
the  owner]  of  the  mortgage,  a  copy  of  which,  with  the  certificate 
of  the  recorder  of  the  county  of  Butte  is  hereto  attached,  and 
marked  Exhibit  "A";  that  the  sum  of  three  hundred  and  seventy- 
two  dollars  and  fifty  cents  is  at  the  date  hereof  actually  due  to 
affiant  from  the  maker  thereof  on  said  mortgage  lieu. 

NOTE, — California,  C  C.  P.,  sec.   705. 


Justice's  Court.  665 


No.  1 107. — Action,  Application  to  Join  in. 
[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Butte, — ss. 

/.  A.,  being  duly  sworn,  says :  That  he  is  the  owner  with  plain- 
tiff of  an  undivided  one-half  interest  in  the  wagon  described  in 
the  complaint  herein ;  that  plaintiff  and  affiant  purchased  said 
wagon  as  partners,  and  that  the  person  from  whom  they  pur- 
chased it  neglected  to  insert  affiant's  name  in  the  bill  of  sale  of 
said  property,  but  inserted  plaintiff's  name  only ;  and  affiant  is  in- 
formed and  believes,  and  therefore  avers,  that  he  is  a  proper  party 
plaintiff  herein,  and  he  therefore  prays  that  he  may  be  permitted 
to  join  in  this  action  as  a  party  plaintiff. 

NOTK— California,  C.  a  P.,  sec.  377. 

No.  1108. — Attachment — Defaulters. 
[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California  to  the  Sheriff  or  any  Con- 
stable of  said  County,  Greeting : 

You  are  hereby  commanded  forthwith  to  attach  the  body  of  /. 
C,  defaulting  juror,  and  have  him  before  our  said  court,  on  the 
twenty-ninth  day  of  January,  IQOJ,  at  ten  o'clock  A.  M.,  then  and 
there  to  show  cause  why  he  should  not  be  punished  for  contempt 
in  disobeying  the  order  summoning  him  to  appear  and  serve  as  a 
juror  in  said  court. 

NOTE. — California,  C.  C.  P.,  sec.  238. 


No.    nog. — Complaint — Goods   Sold   and   Delivered — Justice's 

Court. 

[Title  of  Court  and  Cause.] 

The  plaintiff  complains  of  defendant  and  alleges:  That  at  vari- 
ous times  between  the  i2tJi  day  of  October,  18 j8,  at  the  town  of 
San  Bernardino,  the  defendant,  A.  McC,  purchased  merchandise 
of  the  mercantile  firm  of  L.  A.  &  Co.,  of  the  value  and  for  which 
she  agreed  to  pay  the  sum  of  $242.29  on  delivery  to  her;  that  the 
said  merchandise  was  delivered  to  her  at  various  times  between 
the  I2th  day  of  October,  187S,  and  March,  iSjQ,  that  L.  A.  &  Co. 
assigned  the  said  claim  to  the  plaintiff;  that  after  the  delivery 
of  the  merchandise  A.  married  her  codefendant.  D.  McC,  and 
judgment  is  demanded  against  A.  Mc.  and  D.  McC.  for  $242.29 
and  costs. 


666  New  Book  of  Forms. 

NOTE. — This  case  came  before  the  supreme  court  and  it  was  con- 
tended that  because  the  complaint  did  not  aver  that  the  goods  were 
sold  and  delivered  at  the  request  of  the  defendants,  or  either  of  them, 
or  that  they,  or  either  of  them,  were  indebted  to  plaintiff  therefor, 
that  the  justice 's  court  had  no  jurisdiction  of  the  action. 

The  complaint  waa  sustained  upon  the  ground  that  it  contained  a 
sufficient  statement  of  facts  to  constitute  a  cause  of  action  in  a  jus- 
tice's court;  that  a  complaint  is  sufficient  in  a  justice's  court  "if  it 
shows  the  value  of  the  claim  asserted  by  the  plaintiff  in  such  a  way 
that  a  person  of  common  understanding  may  know  what  is  intended." 
Such  a  complaint  is  good  until  appealed  from  and  reversed  because  it 
was  rendered  by  a  court  having  jurisdiction  of  the  subject  matter  and 
the  parties:   Aucker  v.  McCoy,  56  CaL  524. 


No.  Tiio. — Complaint — Rent  of  Land. 

The  Santa  Barbara  Gas  Co.,  To  M.  A.  L. 

To  balance  due  for  rent  of  land  $250 

(Indorsed:)  Filed  October  20th,  187Q. 

R.  D.  S., 
Justice  of  the  Peace, 

NOTE. — This  complaint  was  upheld,  in  the  absence  of  a  special  de- 
murrer. By  going  to  trial  without  complaint  all  defecta  were  eared; 
La.aillade  v.  Santa  Barbara  Gas  Co.,  58  CaL  4. 


No.   nil. — Complaint — Promissory  Note 

$150.00.  Forest  Hill,  January  loth,  18/5. 

For  value  received,  I  promise  to  pay  to  7.  McD.,  the  sum  of 
$150,  sixty  days  after  the  date  of  this  note,  at  three  per  cent  per 
month  until  paid. 

/.  R. 
(Indorsed:)   For  value  received,  I  hereby  transfer  the  within 
note  to  J.  C.  B. 

J.  McD. 
(Indorsed:)  Pay  to  7.  H.  or  order. 

7.  C.  B. 

NOTE. — This  complaint  was  upheld:  Hamilton  v.  McDonald,  18  Cal. 
128.  In  sustaining  the  complaint  referred  to  in  note  to  Form  No.  1109 
the  court  said  it  was  sufficient  in  the  absence  of  special  demurrer,  and 
that  intimation  destroys  the  value  of  Form  No.  1111  as  a  precedent. 
It  is  of  the  greatest  importance  that  complaints  in  justices'  courts 
should  be  in  form  sufficient  to  sustain  a  judgment  in  any  court.  By 
i.ot  being  reasonably  precise,  thought,  care,  and  time  are  saved,  but  if 
the  proceedings  are  attacked  as  they  may  well  be,  the  probable  con-  ^ 
sequences  may  be  very  annoying  and  expenaive. 


JusTicic's  Court.  667 


No.    1 1 12. — Complaint — Criminal — Indorsement    on. 
[Title  of  Court  and  Cause.] 

[Indorsement  on  the  back  of  a  complaint,  which  may  be  made 
when  additional  depositions  are  deemed  necessary]  as  follows: 

City  and  County  of  San  Francisco — ss. 

A.  B.,  being  duly  sworn  and  examined,  upon  oath,  testifies  and 
says,  that  he  knows  the  contents  of  the  complaint  on  the  other  side 
of  this  document;  that  on  the  first  day  of  August,  igoj,  in  this 
city  and  county,  the  property  described  in  said  complaint  zvas 
feloniously  taken  and  carried  away;  that  the  taking  was  not  under 
claim  of  right,  and  said  property  was  then  of  the  z'olue  of  one  hun- 
dred dollars,  and  zvas  the  said  J.  J.'s  personal  property ;  that  said 
property  was  taken  against  his  (the  said  J.  J.'s)  zvill  and  by  force 
from  his  person;  that  J.  G.,  the  accused  in  said  complaint,  did 
then  and  there  take  the  said  property  with  violence  from  the  per- 
son of  the  said  J.  J. 

NOTE. — When  a  complaint  (information)  is  laid  before  a  magistrate 
of  the  commission  of  a  public  offense,  triable  within  the  county,  he 
must  examine  on  oath  the  informant  or  prosecutor  and  any  witnesses 
he  may  produce,  and  take  their  depositions  in  writing,  and  cause  them 
to  be  subscribed  by  the  parties  making  them.  The  deposition  must 
state  the  facts  constituting  the  offense.  In  California  justices  of  the 
supreme  court,  judges  of  the  superior  courts,  and  justices  of  the  peace 
arc  magistrates.  A  magistrate  does  not  try  a  defendant  and  punish 
him,  if  guilty;  he  inquires  into  the  facts  constituting  the  alleged  of- 
fense, and,  if  the  facts  warrant,  he  commits  him  for  trial  before  a  court 
having  jurisdiction:  Cal.,  Pen,  Code,  sec,  806. 


No.   1 1 13. — Complaint — Deposition. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Sacramento, — ss. 

Now  comes  /.  E.  who,  being  duly  sworn,  deposes  and  says,  that 
on  the  tzventy-fourth  day  of  May,  A.  D.  IQO/,  in  the  county  of 
Sacramento,  state  of  California,  the  crime  of  burglary  was  com- 
mitted. 

State  of  California, 
County  of  Sacramento, — ss. 

/.  E.,  being  duly  sworn  and  examined,  upon  oath,  deposes  and 
says,  as  follows: 


668  New  Book  of  Forms. 

Question — State  the  facts  upon  which  you  base  the  fore.q-oing 
charge. 

Answer — Stating  the  facts  [not  on  information  or  belief,  hut 
positively] . 

NOTK— California,  Pen.  C,  sees.  701,  702,  806-811. 


No.   1 1 14. — Complaint — Criminal  Procedure — Robbery. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Marin, — ss. 

Personally  appears  before  me,  this  seventh  day  of  August,  A.  D. 
igoy,  J.  J.,  who,  on  oath,  makes  complaint,  and  deposes  and  says, 
that  on  the  first  day  of  August,  A.  D.  igoy,  in  the  county  of 
Marin,  state  of  California,  the  crime  of  robbery  was  committed, 
to  wit,  by  /.  G.,  who  then  and  there  did  ^eloniouslv  and  with  force 
and  arms  make  an  assault  upon  said  J.  J.,  and  with  violence  to  his 
person,  and  against  his  will,  did  then  and  there  feloniously  and 
violently  steal,  take  and  carry  away  by  force  from  the  person  of 
the  said  /.  /.,  one  gold  watch  of  the  value  of  one  hundred  dollars, 
and  of  the  personal  property  of  said  /.  /.,  all  of  which  is  contrary 
to  the  form,  force,  and  efifect  of  the  statute  in  such  cases  made  and 
provided,  and  against  the  peace  and  dignity  of  the  people  of  the 
state  of  California.  And  this  complainant,  upon  oath,  accuses  the 
said  /.  G.  of  having  committed  the  said  crime ;  and  this  complain- 
ant further  alleges  and  deposes  that  the  said  accused  was  arrested 
therefor,  and  prays  that  the  said  accused  may  be  brought  before 
a  magistrate  and  dealt  with  according  to  law. 


No.  1 1 15. — Complaint — Forgery. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Alameda, — ss. 

Personally  appears  before  me,  this  tzvelfth  day  of  May,  A.  D. 
ipoy,  W.  F.,  who,  on  oath,  makes  complaint,  and  deposes  and 
says,  that  on  the  fourteenth  day  of  April,  A.  D.  1907,  in  the  county 
of  Alameda,  state  of  California,  the  crime  of  forgery  was  com- 
mitted, to  wit,  by  P.  B.  (whose  real  name  is  unknown  to  this 
complainant),  who  then  and  there  did  willfully,  unlawfullv,  fe- 
loniously, and  fraudulently  make  and  forge  a  certain  promissory 
note,  in  the  rvords  and  figures  follozving,  to  wit  [describe  the  of- 
fense], and  then  and  there,  well  knowing  the  same  to  be  false  and 
forged,  did  then  and  there  willfully  and  unlawfully,  feloniously 
and  fraudulently,  utter,  publish  and  pass  the  same  as  genuine  and 


Justice's  Court.  r/39 

true  to  W.  P.,  the  said  complainant,  all  with  intent  then  and 
there  to  prejudice,  damage,  and  defraud  said  W.  F.,  contrary,  etc. 
[as  in  No.  1114].  And  this  complainant,  upon  oath,  accuses  the 
said  P.  B.  of  having  committed  the  said  crime ;  and  this  com- 
plainant further  alleges  and  deposes  that  the  said  accused  was 
then  and  there  arrested  therefor  in  the  actual  commission  of  the 
said  offense,  and  prays  that  the  said  accused  may  be  brought  be- 
fore a  magistrate  and  dealt  with  according  to  law. 

No.   1 1 16. — Complaint — Assault — Deadly  Weapon, 
[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Sierra, — ss. 

Personally  appears  before  me,  this  fzuenty-third  day  of  May, 
A.  D.  iQoy,  C.  W.,  who,  on  oath,  makes  complaint,  and  deposes 
and  says,  that  on  the  third  day  of  May,  A.  D.  1907,  in  the  county 
of  Sierra,  state  of  California,  the  crime  of  assault  upon  the  per- 
son of  another  with  a  deadly  weapon,  with  intent  to  do  bodily 
harm,  and  without  just  cause  or  excuse,  and  when  no  considerable 
provocation  appears,  was  committed,  to  wit,  by  /.  B.  (whose  real 
name  is  unknown  to  this  deponent),  who  then  and  there  did  will- 
fully, unlawfully,  and  feloniously,  and  with  force  and  arms,  with- 
out just  cause  or  excuse  make  an  assault  upon  C.  W.  with  a  deadly 
weapon,  to  wit,  a  Winchester  rifle,  and  did  then  and  there,  with 
an  intent  to  do  bodily  harm  to  and  upon  the  person  of  said  C.  \V., 
there  being  no  considerable  provocation  therefor,  contrary,  etc.  [as 
in  No.  Ill 4]. 

No,   1 1 17. — Complaint — Assault  to  Murder. 
[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Prancisco, — ss. 

Personally  appears  before  me  this  third  day  of  July,  A.  D.  igoy, 
J.  H.,  who,  on  oath,  makes  complaint,  and  deposes  and  says  that 
on  the  first  day  of  July,  A.  D.  190J,  in  the  county  of  Placer,  state 
of  California,  the  crime  of  an  assault  with  an  intent  to  commit 
murder  was  committed,  to  wit,  by  /.  K.  (whose  real  name  is  un- 
known to  this  complainant),  who  then  and  there  did  unlawfullv, 
feloniously,  willfully,  and  with  malice  aforethought,  make  an  as- 
sault upon  /.  H.  with  a  deadly  weapon,  to  wit.  a  shotgun,  and  did 
then  and  there  make  said  assault ;  and  all  with  an  intent  felon- 
iously, willfully,  and  unlawfully,  and  with  malice  aforethought, 
to  kill  and  murder  said  J.  H.;  ail  of  which  is  contrary,  etc.  [as  m 
No.  1 114]. 


670  New  Book  of  Forms 


No.  1 1 18. — Complaint — Receiving  Stolen  Goods. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  El  Dorado, — ss. 

Personally  appears  before  me  this  third  day  of  May,  A.  D.  IQOJ, 
P.  P.,  who,  on  oath,  makes  complaint,  and  deposes  and  says  that 
on  the  thirtieth  day  of  April,  A.  D.  iQoy,  in  the  county  of  HI 
Dorado,  state  of  California,  the  crime  of  felony  was  committed,  'o 
wit,  by  /.  /.  (whose  real  name  is  unknown  to  this  complainant), 
as  follows,  to  wit,  that  on  the  thirtieth  day  of  Aprii,  A.  D.  IQ07, 
at  said  county,  one  /.  B.  (whose  real  name  is  unknown  to  this 
complainant),  did  willfully,  unlawfully,  and  feloniously  steal, 
take,  and  carry  away  a  diamond  ring,  of  the  value  of  one  hundred 
dollars,  of  the  personal  property  of  /.  G.  (whose  real  name  is  un- 
known to  this  complainant),  and  that  thereafter,  to  wit,  on  the 
said  thirtieth  day  of  April,  A.  D.  ipoy,  at  said  county,  the  said  /. 
/.  did  willfully,  unlawfully,  knowingly,  feloniously,  and  for  his 
own  gain,  and  to  prevent  the  owner,  the  said  /.  G.,  from  again 
possessing  his  said  personal  property,  buy  and  receive  from  said 
J.  B.  the  said  diamond  ring,  and  the  said  /.  /.  then  and  there, 
veil  knowing  the  same  to  have  been  stolen,  as  aforesaid  stated ;  all 
of  which  is  contrary,  etc.  [as  in  No.  1114]- 


No.   mo. — Complaint — Burglary — First  Degree, 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Tulare, — ss. 

Personally  appears  before  me  this  fourteenth  day  of  June,  A.  D. 
TQO/,  J.  B.,  who,  on  oath,  makes  complaint  and  deposes  and  says, 
that  on  the  thirtieth  day  of  May,  A.  D.  190/,  in  the  county  of 
Tulare,  state  of  California,  the  crime  of  burglary  of  the  first  de- 
gree was  committed,  to  wit,  by  C.  B.,  who  then  and  there,  in  the 
night-time  of  said  day,  did  feloniously,  forcibly  and  burglariously 
break  and  enter  the  house,  room,  shop,  Vv^arehouse,  store,  and 
building  of  W.  C.  there  situate,  with  intent  to  commit  grand  lar- 
ceny, and  did  there  and  then  feloniously  and  burglariously  steal, 
take,  and  carry  away  one  gold  watch  of  the  value  of  tzvo  hundred 
dollnrs.  and  of  the  personal  property  of  IV.  C,  contrary,  etc.  [as 
in  No.  II 14]. 


Justice's  Court.  671 

No.    1 1 20. — Complaint — Search-warrant — Larceny. 
[Title  of  Court  and  Cause.] 

State  of  California, 
County  01  Alameda, — ss. 

Personally  appears  before  me  this  third  day  of  April,  A.  D. 
jpo/,  C.  H.,  who,  on  oath,  makes  complaint,  and  deposes  and  says, 
that  on  the  eighteenth  day  of  March,  A.  D.  i^oy,  in  the  county  of 
AUnneda,  state  of  California,  the  crime  of  grand  larceny  was  com- 
niilted,  to  wit,  by  J.  F.  (whose  real  name  is  unknown  to  this  com- 
plainant), who  then  and  there  did  unlawfully  and  feloniously 
steal,  take  and  carry  away  one  gold  hunting-case  watch.  No.  182/, 
made  by  the  Judson  Manufacturing  Company,  Alameda  county, 
California,  of  the  value  of  o)ie  hundred  dollars,  and  of  the  per- 
sonal goods  and  property  of  C.  H.  And  this  deponent  further  de- 
poses and  says  that  he  has,  and  there  is,  just,  probable,  and  reason- 
able cause  to  believe,  and  that  he  does  believe,  that  said  personal 
goods  and  property  are  now  concealed  in  the  house  of  ^S".  J.,  324^ 
Claymore  street,  between  Bvalina  and  Evangelina  streets,  in  said 
county,  all  of  which  is  contrary  to  the  form,  force,  and  effect  of 
the  statute  in  such  cases  made  and  provided,  and  against  the 
peace  and  dignity  of  the  people  of  the  state  of  California.  And 
this  complainant  prays  that  a  search-warrant  may  issue  for  the 
recovery  of  said  personal  goods  and  property  and  that  the  same 
may  be  brought  before  a  magistrate,  and  disposed  of  according  to 
law. 

NOTE.— California,  Peiu  C,  sec.   1525. 


No.    1 1 2 1 . — Complaint — Misdemeanor — Gambling. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me  this  third  day  of  August,  A.  D. 
igoj,  C.  W .,  who,  on  oath,  makes  complaint,  and  deposes  and 
says,  that  on  the  iirst  day  of  August,  A.  D.  ipo^.  in  the  city  and 
county  of  San  Francisco,  state  of  California,  the  crime  of  misde- 
meanor was  committed,  to  wit,  by  /.  R.  (whose  real  name  is  un- 
known to  this  complainant),  who  then  and  there  did  willfully  and 
unlawfully,  open,  deal,  play,  carry  on,  and  conduct  a  certain  bank- 
ing game,  to  unt,  the  banking  game  of  faro,  then  and  there  played 
with  cards,  and  for  money,  and  for  checks  as  represoitati-i'es  of 
value,  contrary  to  the  form,  force,  and  effect  of  the  statute  in  such 


672  New  Book  op  Forms. 

cases  made  and  provided,  and  against  the  peace  and  dignity  of  the 
people  of  the  state  of  California;  and  this  complainant,  upon  oath, 
accuses  the  said  /.  R.  of  having  committed  the  said  crime ;  and 
this  complainant  further  alleges  and  deposes  that  the  said  accused 
was  then  and  there  arrested  therefor  in  the  actual  commission  of 
the  said  offense,  and  prays  that  the  said  accused  may  be  brought 
before  a  magistrate,  and  dealt  with  according  to  law. 

NOTE. — ^If  an  offense  is  committed  not  a  felony,  of  which  a  justice 
of  the  peace  has  jurisdiction  to  try  and  determine,  a  complaint  in  writ- 
ing is  laid  before  him;  he  then,  when  the  case  is  ready  for  trial,  exam- 
ines witnesses  in  the  usual  manner  of  trial  courts:  Cal.,  Pen.  Code,  sec 
1426. 


No.  1 122. — Complaint — Possession  of  Gambling  Tools. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me  this  fourteenth  day  of  May,  A.  D. 
1907,  J.  W.,  who,  on  oath,  makes  complaint,  and  deposes  and 
says,  that  on  the  Urst  day  of  May,  A.  D.  190J,  in  the  city  and 
county  of  San  Francisco,  J.  G.  had  in  his  possession  one  faro-box 
and  spring,  with  thumb-lever  attachment,  and  one  case-keeper, 
which  are  now  in  the  possession  of  /.  G.  (whose  real  name  is 
unknown  to  this  complainant),  in  a  certain  house  and  on  certain 
premises  there  situate,  occupied  by  and  under  the  control  of  said 
/.  G.,  to  wit,  429  Adeline  street,  between  Bmeline  and  Evangeline 
streets,  in  this  city  and  county  of  San  Francisco,  with  intent  there 
to  use  the  same  as  the  means  of  committing  a  public  offense,  to 
wit,  the  offense  of  opening,  dealing,  playing,  and  carrying  on  the 
banking  game  of  faro  for  money,  all  of  which  is  contrary,  etc. 
[as  in  No.  11 14]. 

NOTE. — San   Francisco   Greneral   Orders    (Ordinances),   sec.   37. 


No.    1 123. — Complaint — Visiting    Gambling-house. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me  this  fourth  day  of  May,  A.  D. 
'jpoy,  C.  P.,  who,  on  oath,  makes  complaint,  and  deposes  and 
says  that  on  the  first  day  of  May,  A.  D.  ipo/,  in  the  city  and 


Justice's  Court.  673 

county  of  San  Francisco,  state  of  California,  the  crime  of  misde- 
meanor was  committed,  to  wit,  by  /.  //.  (whose  real  name  is  un- 
known to  this  complainant),  who  then  and  there  did  willfully 
and  unlawfully  become  and  was  a  visitor  to  a  certain  house  and 
place  for  the  practice  of  gambling  there  situate,  and  in  that  portion 
of  said  city  and  county  of  San  Francisco  bounded  by  Larkin, 
Market,  Church,  Eighteenth,  and  Channel  streets  and  the  Water 
Front,  thereby  isolating  the  proznsi-ons  of  section  55,  order  No. 
15S7,  of  the  board  of  supervisors  of  said  city  and  county  of  San 
Francisco,  contrary  to,  etc.  [as  in  No.  1114]. 

NOTE.— San  Francisco  Gen,  Orders,  ed.  1898,  sees.  42,  43,  p,  42. 


No.  1 124. — Complaint — Vulgar  Language. 
[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me  this  fifteenth  day  of  July,  A.  D. 
190/,  M.  M.,  who,  on  oath,  makes  complaint,  and  deposes  and 
says,  that  on  the  thirteenth  day  of  June,  A.  D.  190J,  in  the  city 
and  county  of  San  Francisco,  state  of  California,  the  crime  of  mis- 
demeanor was  committed,  to  wit,  by  C.  C.  (whose  real  name  is 
unknown  to  this  complainant),  who  then  and  there  did  willfully 
and  unlawfully  address  to  this  complainant,  and  utter  and  speak 
vulgar  and  profane  and  obscene  language  and  words,  and  lan- 
guage and  words  having  a  tendency  to  create  a  breach  of  the 
peace,  in  the  presence  and  hearing  of  two  or  more  persons,  thereby 
violating  the  provisions  of  section  28,  order  No.  1587,  of  the  board 
of  supervisors,  of  said  city  and  county;  and  the  language  and 
words  then  and  there  uttered  by  said  C.  C  were;  "You  are  a 
d d  lazy,  miserable,"  etc.,  contrary,  etc.  [as  in  No.  iii4\. 


No.  1 125. — Complaint — Obstructing  Railroad. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me,  this  si.rtccnth  day  of  June,  A.  D. 
1907,  J.  S.,  who,  on  oath,  makes  complaint,  and  deposes  and  says, 
that  on  the  second  day  of  June,  A.  D.  1907,  in  the  city  and 
county  of  San  Francisco,  state  of  California,  the  crime  of  mis- 
demeanor was  committed,  to  wit,  by  H.  H.  (whose  real  name  is 
unknown  to  this  complainant),  who  then  and  there  did  willfully 
New  Forms — i3 


674  New  Book  of  Forms. 

and  unlawfully  obstruct  a  certain  railroad  car  then  and  there  be- 
longing to  the  Kerosene  Railroad  Company,  a  corporation,  then 
and  there  existing  under  and  by  virtue  of  the  laws  of  the  state 
of  California,  to  wit,  did  then  and  there  willfully,  unlawfully,  and 
while  said  car  was  in  motion  and  driving  in  and  along  and  u])on 
Harrison  street,  in  said  city  and  county,  put  and  place  a  certain 
tin  can  in  and  upon,  along  and  across,  the  track  upon  which  said 
railroad  car  was  then  and  there  so  driven  upon  said  Harrison 
street  as  aforesaid,  and  did  then  and  there  willfully  and  unlawfully 
stop,  delay,  hinder,  and  obstruct  said  railroad  car  in  its  passage  in 
and  upon  and  along  said  Harrison  street  as  aforesaid,  and  did  then 
and  there  wiUfidly  and  unlawfully,  in  said  manner,  and  by  said 
weans  aforesaid,  obstruct  a  certain  railroad,  said  railroad  being 
then  and  there  the  right  and  franchise  granted  to  the  Kerosene 
Railroad  Company,  thereby  fiolating  the  provisions  of  sections  i 
and  45,  chapter  lo,  order  No.  y^,  of  the  board  of  supervisors  of 
said  city  and  county  of  San  Francisco,  as  amended  by  order  No.  7 
of  said  board,  all  of  which  is  contrary,  etc.  [as  in  No.  1114]. 


No.  1 125. — Complaint — Refusing  to  "Move  on." 
[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me,  this  nineteenth  day  of  July,  A.  D. 
igoy,  P.  W .,  who,  on  oath,  makes  complaint  and  deposes  and  says, 
that  on  the  third  day  of  July,  A.  D.  190J,  in  the  city  and  county 
of  San  Francisco,  state  of  California,  the  crime  of  misdemeanor 
was  committed,  to  wit,  by  /.  F.  (whose  real  name  is  unknown  to 
this  complainant),  as  follows:  that  is  to  say,  that  then  and  there 
the  free  passage  of  a  public  street,  and  the  public  sidewalk  thereof, 
to  wit,  Baxter  street,  between  Broadway  and  Bunyan  streets,  was 
obstructed  by  a  crowd,  it  then  and  there  not  being  an  occasion  of 
a  public  meeting ;  that  said  /.  F.  was  then  and  there  one  of  the 
persons  composing  said  crowd;  that  this  deponent  was  then  and 
there  and  still  is  a  police  officer  of  the  said  city  and  county ;  that 
this  deponent  as  said  police  officer,  did  then  and  there  request  and 
direct  said  J.  F.  and  the  persons  composing  said  crowd  to  disperse 
and  move  on,  and  said  J.  F.  did  then  and  there  willfully,  unlaw- 
fully and  knoimngly  refuse  to  move  on  and  disperse  when  directed 
so  to  do  by  said  police  officer,  as  aforesaid,  thereby  violating  the 
provisions  of  section  26,  order  No.  i^Sy,  of  the  board  of  super- 
visors of  said  city  and  county  of  San  Francisco,  as  amended  by 
order  i/p4  of  said  board,  all  of  which  is  contrary,  etc.  [as  in  No. 
I114]. 


Justice's  Court.  675 

No.  1 127. — Complaint — Rubbish,  Street,  Depositing. 
[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me,  this  second  day  of  May,  A.  D. 
J907,  J.  B.,  who  deposes  and  says,  that  on  the  thirtieth  day  of 
April,  A.  D.  igoj,  in  said  city  and  county,  the  crime  of  misde- 
meanor was  committed,  to  wit,  by  C.  F.  (real  name  unknown), 
who  then  and  there  did  unlawfully  deposit  on  Market  street  a 
cartload  of  sand,  within  the  limits  of  the  said  city  and  county  of 
San  Francisco,  and  not  within  that  tract  of  land  lying  and  being 
within  the  boundary  of  the  said  city  and  county  of  San  Francisco, 
and  described  as  follows:  [Description  of  Place.]  Thereby  violat- 
ing the  provisions  of  section  2,  order  No.  1587,  of  the  board  of 
supervisors  of  said  city  and  county  of  San  Francisco,  all  of  which 
is  contrary,  etc.   [as  in  No.  1114]. 


No.   1 128, — Complaint-^Rubbish  on  Street. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me,  this  fourth  day  of  August,  A.  D. 
JQoy,  J.  P.,  who,  on  oath,  makes  complaint,  and  deposes  and  says, 
that  in  the  city  and  county  of  San  Francisco,  state  of  California, 
the  crime  of  misdemeanor  was  committed,  to  wit,  /.  B.  (whose 
real  name  is  unknown  to  this  complainant),  as  follows;  that  is  to 
say,  that  there,  on  the  first  day  of  July,  A.  D.  igoy,  and  since 
then,  said  /.  B  was,  has  been,  and  still  is  the  owner,  tenant,  oc- 
cupant and  lessee  of  a  certain  building,  land,  and  premises  front- 
ing on  a  certain  public  street  tliere  situate,  to  wit:  [Description.] 
That  earth,  sand,  rock,  stones,  dust,  filth,  rubbish,  garbage,  hay, 
straw  and  matter  had  accumulated  in  said  Carpenter  street  in 
front  of  said  building,  land,  and  premises;  that  the  superintend- 
ent of  public  streets,  highways,  and  squares  of  said  city  and 
county,  caused  a  notice  to  be  duly  served  on  and  personally  de- 
livered to  said  /.  B.,  requiring  him,,  said  J.  B.,  to  remove  said 
earth,  sand,  rock,  stones,  dust,  filth,  rubbish,  garbage,  hay,  strazv, 
and  matter  from  in  front  of  said  building,  land,  and  premises, 
from  the  line  of  said  building,  land,  and  premises,  to  the  center  of 
said  Carpenter  street;  that  more  than  three  days  have  elapsed  since 
said  notice  was  served  and  received  by  said  J.  B.  as  aforesaid,  yet 


6/6  New  Book  of  Forms. 

said  J.  B.  has  willfully  and  unlawfully  neglected  and  refused, 
and  still  does  willfully  and  unlawfully  neglect  and  refuse,  to  re- 
luoz'e  said  earth,  sand,  rock,  stones,  dust,  filth,  rubbish,  garbage, 
hay,  straw,  and  matter  from  in  front  of  said  building,  land,  and 
premises,  from  the  line  thereof  to  the  center  of  said  Carpenter 
street,  or  from  any  portion  of  said  Carpenter  street,  in  front  of 
said  building,  land,  and  premises,  thereby  violating  the  provisions 
of  section  ii,  order  No.  1588,  of  the  board  of  supervisors  of  said 
city  and  county  of  San  Francisco,  contrary,  etc.  [as  in  No.  1114]- 


No.  1 1 29. — Complaint — Privy  not  Connected  with  Sewer. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me,  this  fourth  day  of  March,  A.  D. 
igoy,  J.  D.,  who,  on  oath,  makes  complaint,  and  deposes  and  says, 
that  on  the  thirtieth  day  of  January,  A.  D.  igoy,  in  the  city  and 
county  of  San  Francisco,  state  of  California,  the  crime  of  mis- 
demeanor was  committed,  to  wit,  by  R.  R.  (whose  real  name  is 
unknown  to  this  complainant),  who  then  and  there  did  willfully 
and  unlawfully  maintain  upon  certain  premises  there  situate, 
occupied  and  owned  by  and  under  the  control  of  the  said  R.  R., 
to  wit.  No.  40^  Rudolph  street,  between  Emma  and  John  streets, 
a  certain  privy,  without  connecting  the  said  privy  with  the  street 
sewer  in  said  Rudolph  street  in  such  a  manner  that  said  privy  can 
and  could  be  effectually  drained  and  purified,  there  being  then  and 
there  a  street  sewer  in  said  Rudolph  street,  on  which  said  prem- 
ises are  situated,  with  which  said  privy  can  and  could  be  con- 
nected, therebv  violating  the  provisions  of  section  4,  order  No. 
1587,  of  the  board  of  supervisors  of  the  city  and  county  of  San 
Francisco,  all  of  which  is  contrary,  etc.  [as  in  No.  1114]. 


No.  1 1 30. — Complaint — Maintaining  a  Nuisance. 
[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me,  this  twelfth  day  of  June,  A.  D. 
igoj,  P.  C,  who,  on  oath,  makes  complaint,  and  deposes  and  says, 
that  on  the  first  day  of  June,  A.  D.  1907,  at  409  Willow  street,  be- 
tween Ash  and  Hickory  streets,  in  the  city  and  county  of  San 
Francisco,  state  of  California,  the  crime  of  misdemeanor  was  com- 


Justice's  Court,  677 

mitted,  to  wit,  by  /.  M.  (whose  real  name  is  unknown  to  this 
coinplaiiiant),  who  then  and  tliere  did  willfully  and  unlawfully 
suffer  and  permit  certain  premises  there  situate  and  belonging  to 
and  occupied  by  the  said  /.  M.  to  become  nauseous,  foul,  offens- 
ive, and  prejudicial  to  public  health  and  public  comfort,  to  wit:  he 
caused  the  drainage  from  his  bathroom  and  kitchen-sink  to  empty 
into  the  basement  of  the  hoxise  occupied  by  him  on  said  premises, 
thereby  violating  the  provisions  of  section  6,  order  No.  138/,  of 
the  board  of  supervisors  of  said  city  and  county  of  San  Francisco, 
all  of  which  is  contrary,  etc.   [as  in  No.  IJ14]. 


No.  1 131. — Complaint — Doing  Business  Witiiout  License. 
[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me,  this  thirteenth  day  of  June,  A.  D. 
i^oy,  J.  J.,  who,  on  oath,  makes  complaint,  and  deposes  and  says, 
that  on  the  Urst  day  of  June,  A.  D.  iQoy,  in  the  city  and  county 
of  San  Francisco,  state  of  California,  the  crime  of  misdemeanor 
was  committed,  to  wit,  by  P.  P.  (whose  real  name  is  unknown  to 
this  complainant),  who  then  and  there,  at  fixed  place  of  busi- 
ness, to  wit,  at  No.  4ig  Willozv  street,  between  Ash  and  Hickory 
streets,  zvUlfully  and  unlazvfully  did  engage  in  carrying  on,  pursu- 
ing, and  transacting  the  business,  trade,  occupation,  and  employ- 
ment of  selling,  and  did  sell,  goods,  wares,  and  merchandise,  to 
wit,  selling  dry  goods,  without  taking  out  and  procuring  the  li- 
cense therefor  prescribed  and  required  by  law,  and  the  said  goods, 
zvarcs,  and  mercJiandise,  were  not  then  and  there  agricultural  or 
7'inicultural  productions,  or  productions  of  any  stock,  dairy,  or 
poultry  farm  of  said  state,  sold  by  the  producer  thereof,  and  were 
not  then  and  there  sold  by  an  auctioneer  at  public  sale,  under 
license,  all  of  which  is  contrary,  etc.  [as  in  No.  11 14]. 


No.    1 132. — Complaint — Doing    Business    Without    License — 

Ordinance. 

[Title  of  Coiu^t  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me,  this  tzventy-fourth  day  of  July, 
A.  D.  ipo/,  jr.  JV.,  who,  on  oath,  makes  complaint,  and  deposes 
and  says,  tliat  on  the  second  day  of  July,  A.  D.  ipoy,  in  tlie  city 


678  New  Book  of  Forms. 

aud  county  of  San  Francisco,  state  of  California,  the  crime  of 
misdemeanor  was  committed,  to  wit,  by  7.  B.  (whose  real  name  is 
unknown  to  this  complainant),  who  then  and  there  was  willfully 
and  unlawfully  engaged  in,  and  did  then  and  there  willfully  and 
unlawfully  engage  in,  transact,  and  carry  on  the  business,  trade, 
profession,  and  calling  of  keeping  a  fruit  store  at  No.  7  Diipont 
street,  without  having  first  taken  out  and  procured  the  municipal 
license  required  by  ordinance,  of  the  board  of  supervisors  of  the 
said  city  and  county  of  San  Francisco,  thereby  violating  the  pro- 
visions of  section  2,  order  No.  138P,  of  the  board  of  supervisors  of 
the  said  city  and  county  of  San  Francisco,  all  of  which  is  con- 
trary, etc.  [as  in  No.  in 4]. 


No.  1 1 33. — Complaint — Keeping  Minor  in  House  of  Prostitu- 
tion. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me,  this  fourth  day  of  July,  A.  D. 
190J,  J.  C,  who,  on  oath,  makes  complaint,  and  deposes  and  says, 
that  on  the  first  day  of  July,  A.  D.  ipoy,  in  the  city  and  county 
of  San  Francisco,  state  of  California,  the  crime  of  misdemeanor 
was  committed,  to  wit,  by  IV .  L.  (whose  real  name  is  unknown 
to  this  complainant),  who  then  and  there  being  the  proprietor, 
keeper,  manager,  conductor,  and  person  having  the  control  of  a 
certain  house  of  prostitution,  and  house  and  room  resorted  to  for 
the  purpose  of  prostitution,  there  situate,  did  willfully  and  un- 
lazvfully  admit  and  keep  a  certain  minor,  to  wit,  B.  K.  (whose 
real  name  is  unknown  to  this  deponent),  of  the  age  of  seventeen 
years,  therein,  contrary,  etc.  [as  in  No.  1114]. 


No.  1 134. — Complaint — Minor  Employed  in  Exhibition. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me,  this  tzuenty-thtrd  day  of  June, 
A.  D.  ipO/',  IV.  B.,  who,  on  oath,  makes  complaint,  and  deposes 
and  says,  that  on  the  second  day  of  June,  A.  D.  ipo/,  in  the  city 
and  county  of  San  Francisco,  state  of  California,  the  crime 
of  misdemeanor  was  committed,  to  wit,  by  /.  G.  (whose  real 
name  is  unknown  to  this  complainant),  who  then  and  there  being 


Justice's  Court.  679 

a  parent,  to  wit,  the  father  of  C.  G.,  and  then  and  there  having 
the  care,  custody,  and  control  of  a  certain  child  under  the  age  of 
sixteen  years,  to  wit,  C.  G.  (whose  real  name  is  unknown  to  de- 
ponent), of  the  age  of  fourteen  years,  did  then  and  tliere  vnllfully 
and  unlawfully  exhibit,  use,  and  employ  said  child  in  and  for 
the  vocatioyi,  occupation,  service,  and  purpose  of  dancing  for  hire 
in  a  public  saloon,  to  wit,  at  No.  Ii2g^  V.  avenue,  contrary  to,  etc. 
[cLs  in  No.  1 114]. 

No.   1 135. — Complaint — Common  Drunkard. 

[Title  of  Court  and  Cause.] 

State  of  California^ 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me,  this  thirteenth  day  of  August,  A. 
D.  ipoy,  W.  K.,  who,  on  oath,  makes  complaint,  and  deposes  and 
says,  that  on  the  second  day  of  August,  A.  D.  /po/,  and  from  said 
second  day  of  August,  A.  D.  ipoy,  up  to  the  time  of  the  making- 
of  this  complaint,  in  the  city  and  county  of  San  Francisco,  state 
of  California,  the  crime  of  misdemeanor  was  committed,  to  wit, 
by  /.  C.  (whose  real  name  is  unknown  to  this  complainant),  who 
then  and  there,  and  from  said  second  day  of  August,  A.  D.  IQO/, 
up  to  the  time  of  the  making  of  this  complaint,  not  being  a  Cali- 
fornia Indian,  there  unlawfully  zvas,  has  been,  and  still  is,  a  com- 
mon drunkard,  all  of  which  is  contrary,  etc.  [as  in  No.  1114]. 

No.   1 136. — Complaint — Obstructing  Streets. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me,  this  third  day  of  May,  A.  D. 
ipoy,  J.  B.,  who,  on  oath,  makes  complaint,  and  deposes  and  says, 
that  on  the  first  day  of  May  A.  D.  iQoy,  at  //  Adeline  street,  be- 
tween William  and  Mary  streets,  in  the  city  and  county  of  San 
Francisco,  state  of  California,  the  crime  of  misdemeanor  was  com- 
mitted, to  wit,  by  C.  F.  (whose  real  name  is  unknown  to  this 
complainant),  who  then  and  there  owning,  occupying,  and  having 
control  of  certain  premises  there  situate,  did  then  and  there  will- 
fully and  unlawfully  cause  to  be  placed  and  suffer  to  remain  in 
front  of  said  premises,  upon  the  sidewalk  of  said  street,  and  the 
Jialf  of  said  street  next  to  said  premises,  a  threshing-machine, 
which  zvas  then  and  there  an  obstruction,  and  zvJiich  unlazvfully 
did  then  and  there  obstruct  the  passage  of  said  street  and  sidezvalk 
for  more  than  one  hour  at  a  time,  the  said  street  and  sidezvalk  be- 
ing then  and  there  a  public  street  and  public  sidezvalk  in  said  city 
and  county,  the  said  threshing-machine  then  and  there  unlazvfully 


68o  New  Book  of  Forms. 

remaining  upon  said  street  and  sidewalk  for  more  than  one  hour 
at  a  time  and  was  not  merchandise  or  goods  in  the  actual  course 
of  receipt,  delivery,  or  removal,  and  was  not  lamp-posts,  nor  hy- 
drants, nor  ornamental  trees,  nor  barriers  for  the  protection  of 
ornamental  trees,  nor  watering  troughs,  nor  material  being  used 
in  the  construction  or  repair  of  any  building,  thereby  violating 
the  provisions  of  section  ii,  order  No.  1588,  of  the  board  of  su- 
pervisors of  said  city  and  county  of  San  Francisco,  all  of  which 
is  contrary  to,  etc.  [as  in  No.  1114]. 

No.  1 137. — Complaint — Discharging  Firearms. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me,  this  thirty-first  day  of  July,  A.  D. 
jgoy,  P.  B.,  who,  on  oath,  makes  complaint,  and  deposes  and  says, 
that  on  the  twentieth  day  of  July,  A.  D.  1907,  in  the  city  and 
county  of  San  Francisco,  state  of  California,  the  crime  of  misde- 
meanor was  committed,  to  wit,  by  /.  D.  (whose  real  name  is  un- 
known to  this  complainant),  who  then  and  there  did  willfully  and 
unlawfully  discharge  and  shoot  off  a  certain  firearm,  to  wit,  a 
shotgun,  within  three  hundred  yards  of  a  certain  public  highway 
and  street  there  situate,  to  wit.  No.  3000  Julia  street,  and  also 
within  three  hundred  yards  of  a  certain  dwelling-house  there  situ- 
ate, to  wit,  the  dzvelling-house  of  J.  D.  (whose  real  name  is  un- 
known to  this  complainant),  and  within  that  portion  of  said  city 
and  county  bounded  by  Devisadero,  Fell,  St  any  an,  Frederick, 
Fifteenth,  Castro,  Twenty-sixth  and  Napa  streets,  and  the  outer 
line  of  the  street  forming  the  Water  Front  of  said  city  and  county, 
the  said  /.  D.  then  and  there  not  having  any  special  permission 
in  writing  from  the  mayor  of  said  city  and  county  to  then  and 
there  discharge  and  shoot  off  said  firearm,  to  wit,  said  shotgun, 
and  the  said  J.  D.  was  not  then  and  there  shooting  destructive 
animals  within  or  upon  his  own  inclosure,  thereby  violating  the 
provisions  of  section  22,  order  No.  1587,  of  the  hoard  of  super- 
visors of  said  city  and  county  of  San  Francisco,  contrary,  etc. 
[as  in  No.  1114]. 


No.  1 1 38. — Complaint — Insufficient  Fresh  Air  Per  Capita. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Now  comes  /.  B.,  who,  being  duly  sworn,  deposes  and  says,  that 
on  the  fourth  day  of  April,  A.  D.  ipo/,  in  the  city  and  county  of 


Justice's  Court.  68i 

San  Francisco,  state  of  California,  the  crime  of  misdemeanor  was 
committed,  to  wit,  by  Ah  Chee  (whose  real  name  is  unknown  to 
this  complainant),  as  follows:  that  is  to  say,  that  then  and  there, 
and  within  the  limits  of  an  incorporated  city  and  county,  to  wit, 
the  city  and  county  of  San  Francisco,  a  certain  number  of  per- 
sons, to  wit,  three  hundred  persons,  did  willfully  and  unlawfully 
sleep  and  lodge  in  a  certain  room  and  apartment  in  a  certain 
building,  house,  and  structure  there  situate,  on  Dupont  street,  be- 
tzvccn  Vallejo  and  Green  streets,  and  within  the  limits  of  said 
incorporated  city  and  county ;  that  said  room  and  apartment 
did  then  and  there  and  does  contain  less  than  live  hundred  cubic 
feet  of  space  in  the  clear  for  each  and  every  person  then  and 
there  sleeping  in  and  lodging  in  said  room  and  apartment,  and  so 
occupying  said  room;  that  said  Ah  Chee  then  and  there  did  will- 
fully and  unlazvfully  use  and  hire  said  room  and  apartment  for 
the  purpose  of  sleeping  therein  and  lodging  therein,  said  room 
and  apartment  then  and  there  containing  less  than  five  hundred 
cubic  feet  of  space  in  the  clear  for  each  and  every  person  then 
and  there  sleeping  therein  and  lodging  therein;  and  that  the 
said  Ah  Chee,  with  a  certain  number  of  other  persons,  to  tvit, 
three  hundred  persons,  did  then  and  there  ivillfully  and  unlazv- 
fully sleep  and  lodge  in  said  room  and  apartment,  the  said  room 
and  apartment  then  and  there  containing  less  than  five  hundred 
cubic  feet  of  space  in  the  clear  for  each  and  ez'cry  person  then 
and  there  sleeping  therein  and  lodging  therein  as  aforesaid ;  and 
said  Ah  Chee  was  then  and  there  found  sleeping  and  lodging 
in  said  room  and  apartment  as  hereinbefore  alleged,  contrary, 
etc.   [as  in  No.  1114]. 


No.  1 1 39. — Complaint — Keeping  House  of  Ill-fame. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — Sj*. 

Personally  appears  before  me  this  fourteenth  day  of  July,  A.  D. 
iQoy,  C.  L.,  who  on  oath,  makes  complaint,  and  deposes  and 
says,  that  on  the  lltird  day  of  July,  iQoy,  in  the  city  and  county 
of  Sa)i  Francisco,  state  of  California,  the  crime  of  misdemeanor 
was  committed,  to  wit,  by  IV.  G.  (whose  real  name  is  unknown 
to  this  complainant),  who  then  and  there  did  willfully  and  un- 
lazvfully keep  a  certain  house  of  ill-fame  in  said  state,  resorted  to 
for  the  purpose  of  prostitution  and  lewdness,  contrary,  etc.  [as 
in  No.  Ill 4]. 


682  New  Book  of  Forms. 

No.  1 140. — Complaint — Visiting  House  of  Ill-fame. 
[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me  this  thirteenth  day  of  July,  A.  D. 
ipo/',  J.  P.,  who,  on  oath,  makes  complaint,  and  deposes  and  says, 
that  on  the  iirst  day  of  July,  A.  D.  iQoy,  in  the  city  and  county  of 
San  Francisco,  state  of  California,  the  crime  of  misdemeanor  was 
committed,  to  wit,  by  T.  C.  (whose  real  name  is  unknown  to  this 
complainant),  who  then  and  there  did  willfully  and  unlawfully 
become,  and  was  a  visitor  to  a  certain  house  of  ill-fame  there 
situate,  and  in  that  portion  of  said  city  and  county  of  San  Fran- 
cisco bounded  by  Larkin,  Market,  Church,  Eighteenth,  and  Chan- 
nel streets  and  the  Water  Front,  to  wit.  No.  8'j2g  Grant  az'cnue, 
thereby  violating  the  provisions  of  section  jj,  order  No.  158"/,  of 
the  board  of  supervisors  of  said  city  and  county  of  San  Fran- 
cisco, contrary,  etc.   [as  in  No.  1114]. 

No.   1 141. — Complaint — Lottery  Tickets  in  Possession. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Now  comes  /.  W.,  who,  being  duly  sworn,  deposes  and  says, 
that  on  the  fourth  day  of  May,  igoy,  in  the  city  and  county  of 
San  Francisco,  state  of  California,  W.  S.  (whose  real  name  is 
unknown  to  this  complainant),  did  then  and  there  willfully  and 
unlawfully  have  in  his  possession  a  certain  ticket,  certificate, 
paper,  and  instrument,  purporting,  representing,  and  understood 
to  be  and  to  represent  a  ticket,  chance,  share,  and  interest  in  and 
depending  upon  the  event  of  a  lottery,  and  that  said  possession 
was  not  innocent,  and  zvas  not  for  a  lawful  purpose;  said  ticket 
was  No.  97,673,  ond  was  issued  by  the  Alameda  Lottery  Com- 
pany; thereby  violating  the  provisions  of  section  3972,  order  No. 
8746,  of  the  board  of  supervisors  of  said  city  and  county  of  San 
Francisco,  as  amended  by  order  No.  9765  of  said  board,  con- 
trary, etc.  {a^  in  No.  it  14]. 

No.  1 142. — Complaint — Keeping    Office  for    Sale  of    LrOttery 

Tickets. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me  this  twelfth  day  of  January,  A. 
D.  ipo7,  J.  J.,  who,  on  oath,  makes  complaint,  and  deposes  and 


Justice's  Court.  683 

says :  that  on  the  iirst  day  of  January,  A.  D.  iQoy.  in  the  city 
and  county  of  San  Francisco,  state  of  California,  the  crime  of 
misdemeanor  was  committed,  to  wit,  by  P.  B.  (whose  real  name 
is  unknown  to  this  complainant),  who  then  and  there  did  will- 
fully and  unlawfully  open,  set  up,  and  keep  at  No.  ^000  Grant 
avenue  a  certain  oifice,  room  and  place  there  situate  for  the  sale 
of  tickets  in  a  certain  lottery,  and  for  the  re(^istering  of  the  num- 
bers of  tickets  in  said  lottery,  to  wit,  the  tickets  of  the  Louisiana 
Lottery  Company,  contrary,  etc.   [as  in  No.  1114]. 


No.  1 143. — Complaint — Cruelty  to  Animals. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me  this  fourteenth  day  of  July,  A.  D. 
1907,  W.  C.,  who,  on  oath,  makes  complaint,  and  deposes  and 
says,  that  on  the  first  day  of  July,  A.  D.  1907,  in  the  city  and 
county  of  San  Francisco,  state  of  California,  the  crime  of  mis- 
demeanor was  committed,  to  wit,  by  /.  F.  (whose  real  name  is 
unknown  to  this  complainant),  who  then  and  there  did  will- 
fully and  unlawfully  and  cruelly  torture  and  torment  a  certain 
animal,  to  zvit,  the  said  defendant  beat  on  the  head  a  horse  at- 
tached to  a  wagon  driven  by  the  defendant  on  a  public  street, 
with  an  iron  bar  about  one  inch  thick  and  four  feet  long,  thereby 
causing  said  horse  great  pain,  contrary,  etc.  [as  in  No.  III4\. 


No.  1 144. — Complaint — Vagrant — Against 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me,  this  tzventy-third  day  of  June, 
A.  D.  1907,  J.  G.,  who,  on  oath,  makes  complaint,  and  deposes 
and  says,  that  on  the  third  day  of  June,  A.  D.  1907,  and  from 
said  third  day  of  June,  A.  D.  1907,  up  to  the  time  of  the  making 
of  this  complaint,  in  the  city  and  county  of  San  Francisco,  state 
of  California,  the  crime  of  misdemeanor  was  committed,  to  wit, 
by  /.  C.  (whose  real  name  is  unknown  to  this  deponent),  who 
then  and  there  and  from  said  third  day  of  June,  A.  D.  1907,  up 
to  the  time  of  the  making  of  this  complaint,  not  being  a  Califor- 
nia Indian,  there  unlawfully  roamed  and  unlawfully  has  roamed 
about  from  place  to  place  without  any  lazvful  business;  willfuUy 


684  New  Book  of  Forms. 

a)id  unlarvfuUy  was,  has  been,  and  during  said  time  continued  to 
be,  and  sflll  is,  an  idle  and  dissolute  person,  and  an  associate  of 
known  thieves,  who  wanders  and  roams,  and  has  during  said 
time  wandered  and  roamed  about  the  streets  of  said  city  and 
county  at  late  and  unusual  hours  of  the  night;  will f idly  and  un- 
lawfully was,  has  been,  continued  to  be,  and  still  is,  a  lewd  and 
dissolute  person,  who  lives,  and  has  during  said  time  lived,  in 
and  about  houses  of  ill-fame  there  situate,  contrary,  etc.  [as  in 
No.  1 114]. 

No.  1 145. — Complaint — Selling  Liquors  Without  License, 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me  this  tzventy-ninth  day  of  June, 
A.  D.  190J,  J.  W.,  who,  on  oath,  makes  complaint,  and  deposes 
and  says,  that  on  the  fourth  of  July,  A.  D.  igoj,  in  the  city  and 
county  of  San  Francisco,  state  of  California,  the  crime  of  mis- 
demeanor was  committed,  to  wit,  by  P.  JI.  (whose  real  name  is 
unknown  to  this  complainant),  who  then  and  there  willfully  and 
unlawfully  did  engage  in  carrying  on,  pursuing,  and  transacting 
the  business,  occupation,  and  employment  of  selling,  and  did  sell, 
spirituous  liquors,  malt  liquors,  and  fermented  liquors,  and  fer- 
mented wines,  in  less  quantities  than  one  quart,  without  taking 
out  and  procuring  the  license  therefor  prescribed  and  required 
by  law,  all  of  which  is  contrary,  etc.  [as  in  No.  1114]. 

No.   1 146. — Complaint — Disturbing  the  Peace. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me,  this  twenty-fourth  day  of  July, 
A.  D.  ipoy,  W.  H.,  who,  on  oath,  makes  complaint,  and  deposes 
and  says,  that  on  the  second  day  of  July,  A.  D.  ipoy,  in  the  city 
and  county  of  San  Francisco,  state  of  California,  the  crime  of 
misdemeanor  was  committed,  to  wit,  by  /.  D.  (whose  real  name 
is  unknown  to  this  complainant),  who  then  and  there  did  will- 
fully, unlawfully,  and  maliciously  disturb  the  peace  and  quiet  of 
the  neighborhood  of  the  southwest  corner  of  Grant  avenue  and 
Dupont  street,  in  said  city  and  county,  and  the  peace  and  quiet 
of  W.  H.,  then  and  there  being,  by  then  and  there  making  loud 
and  unusual  noise,  by  tumultous  and  offensive  conduct,  by  threat- 
ening, traducing,  quarreling.  chaVenging  to  fight,  and  by  fight- 
ing, contrary,  etc.   [as  in  No.  1114]. 


Justice's  Court.  685 

No.   1 147. — Complaint — Violating  Fire   Ordinance, 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me,  this  ninth  day  of  May,  A.  D. 
1907,  J.  S.,  who,  on  oath,  makes  complaint,  and  deposes  and  says 
that  on  the  third  day  of  May,  A.  D.  1907,  in  the  city  and  county 
of  San  Francisco,  state  of  California,  the  crime  of  misdemeanor 
was  committed,  to  wit,  by  /.  L.  (whose  real  name  is  unknown  to 
this  complainant),  who  then  and  there  did  willfully  and  unlaw- 
fully erect,  build,  and  maintain  and  cause  to  be  erected,  built 
and  maintained,  over  and  upon  the  roof  of  a  certain  building  sit- 
uate within  the  limits  of  said  city  and  county,  to  zvit,  on  40Q  Eva- 
line  street,  between  Adeline  and  Caroline  streets,  public  streets 
of  and  in  said  city  and  county,  certain  scaffolding,  without  hav- 
ing first  obtained  the  xvritten  permission  of  the  board  of  super- 
visors of  said  city  and  county  so  to  do,  stating  fully  for  what 
purpose  said  scaffolding  was  to  have  been  erected  and  used; 
thereby  violating  the  provisions  of  section  2,  order  No.  ijdg,  and 
section  6g  of  order  No.  1^87.  of  the  board  of  sitpervisors  of  the 
city  and  county  of  San  Francisco,  contrary,  etc.  [as  in  No.  1114]. 


No.    1 148. — Complaint — Malicious    Mischief. 
[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me,  this  fourteenth  day  of  August, 
A.  D.  1907,  J.  B.,  who,  on  oath,  makes  complaint,  and  deposes 
and  says :  that  on  the  second  day  of  August,  A.  D.  1907,  in  the 
city  and  county  of  San  Francisco,  state  of  California,  the  crime 
of  malicious  mischief  was  committed,  to  wit,  by  S.  L.,  who  then 
and  there  did  willfully,  unlawfully,  and  maliciously  break  and 
injure  the  front  door  of  house  No.  7^26  Grant  az'enue,  the  said 
house  being  then  and  there  the  property  of  said  J.  E.,  and  to 
his  (the  said  J.  E.'s)  damage  in  the  sum  of  one  hundred  dollars, 
all  of  which  is  contrary,  etc.  [cls  in  No.  1114]. 


6S6  New  Book  of  Forms. 

No.  1 149. — Complaint — Keeping  Opium  Resort. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me,  this  tzventy-fourth  day  of  March, 
A.  D.  JQoy,  J.  T.,  who,  on  oath,  makes  complaint,  and  deposes 
and  says,  that  on  the  fourteenth  day  of  March,  A.  D.  1907,  in  the 
city  and  county  of  San  Francisco,  state  of  California,  the  crime 
of  misdemeanor  was  committed,  to  wit,  by  A.  H.  (whose  real 
name  is  unknown  to  this  complainant),  who  then  and  there  did 
willfully  and  unlawfully  keep  and  maintain  a  certain  place,  house, 
and  room  there  situate,  zvhere  opium  is  smoked,  and  zvhcrc  per- 
sons assemble  for  the  purpose  of  smoking  opium  and  inhaling 
the  fumes  of  opium,  to  wit,  at  No.  82J  Grant  avenue,  thereby 
violating  the  provisions  of  section  61,  order  No.  1587,  of  the 
board  of  supervisors  of  said  city  and  county  of  San  Francisco, 
contrary  to  the  form,  force,  and  effect  of  the  statute  in  such 
cases  made  and  provided,  and  against  the  peace  and  dignity  of 
the  people  of  the  state  of  California;  and  this  complainant,  upon 
oath,  accuses  the  said  A.  H.  of  having  committed  said  crime ;  and 
this  complainant  further  alleges  and  deposes  that  the  said  ac- 
cused was  then  and  there  arrested  therefor  in  the  actual  com- 
mission of  the  said  offense,  and  prays  that  the  said  accused  may 
be  brought  before  a  magistrate,  and  dealt  with  according  to  law. 

No.    1 150. — Complaint — Petit   Larceny. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me  this  fourteenth  day  of  May,  A. 
D.  1907,  J.  D.,  who,  on  oath,  makes  complaint,  and  deposes  and 
says,  that  on  the  second  day  of  May,  1907,  in  the  city  and  county 
of  San  Francisco,  state  of  California,  the  crime  of  petit  larceny 
was  committed,  to  wit,  by  /.  A.  (whose  real  name  is  unknown  to 
this  complainant),  who  then  and  there  did  unlawfully  and  felon- 
iously steal,  take,  and  carry  av/ay  one  silver  watch.  No.  87,227, 
manufactured  by  the  Judson  Rolling  Mill  Company,  Alameda 
county,  of  the  value  of  forty  dollars,  and  of  the  personal  goods 
and  property  of  J.  D.,  all  of  which  is  contrary,  etc.  [as  in  No. 
1114]. 

NOTE. — California,  Pen.  C,  sec.   1426. 


Justice's  Court.  687 

No.    1 151. — Complaint — Visiting   Opium  Den, 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

Personally  appears  before  me  this  ninth  day  of  June,  A.  D. 
J907,  J.  S.,  who,  on  oath,  makes  complaint,  and  deposes  and  says, 
that  on  the  second  day  of  June,  A.  D.  1907,  in  the  city  and  county 
of  San  Francisco,  state  of  California,  the  crime  of  misdemeanor 
was  committed,  to  wit,  by  /.  W.  (whose  real  name  is  unknown  to 
this  complainant),  who  then  and  there  did  willfully  and  unlaw- 
fully become  an  inmate  of  and  a  znsitor  to  a  certain  place,  house, 
and  room  there  situate,  ivhcre  opium  is  smoked,  and  zvhere  per- 
sons assemble  for  the  purpose  of  smoking  opium  and  inhaling 
the  fumes  of  opium,  to  zvit,  at  No.  82J  Grant  avenue,  thereby 
violating  the  provisions  of  section  61,  order  No.  1587,  of  the 
board  of  supervisors  of  said  city  and  county  of  San  Francisco, 
contrary  to  the  form,  force,  and  effect  of  the  statute  in  such 
cases  made  and  provided  and  against  the  peace  and  dignity  of 
the  people  of  the  state  of  Calif ornia;  and  this  complainant,  upon 
oath,  accuses  the  said  /.  W.  of  having  committed  said  crime ;  and 
this  complainant  further  alleges  and  deposes  that  the  said  ac- 
cused was  then  and  there  arrested  therefor  in  the  actual  com- 
mission of  the  said  oflFense,  and  prays  that  the  said  accused  may 
be  brought  before  a  magistrate,  and  dealt  with  according  to  law. 

No.   1 1 52. — Complaint — Idle  and  Dissolute  Minor. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

To  the  Honorable  P.  G.,  Judge  of  the  Police  Judge's  Court,  of 
the  City  and  County  of  San  Francisco; 
Personally  appears  before  me  this  thirteenth  day  of  July,  A.  D. 
190J,  J.  G.  and  W.  B.,  who  being  duly  sworn,  according  to  law, 
each  for  himself,  and  not  one  for  the  other,  do,  on  oath,  make  ap- 
plication and  complaint  to  said  judge,  and  do  depose  and  say, 
that  they  are  citizens  of  the  state  of  California,  and  residents  of 
the  city  and  county  of  San  Francisco,  state  of  California;  that 
one  J.  B.  is  a  minor  child ;  that  said  minor  child  is  under  the  age 
of  eighteen  years,  to  wit,  of  the  age  of  fourteen  years ;  that  said 
minor  child  is  leading  an  idle  and  dissolute  life  in  said  city  and 
county  of  San  Francisco,  state  of  California;  that  the  parents,  to 


688  New  Book  of  Forms. 

wit,  the  father  of  said  mijior,  J.  D.,  and  the  mother  of  said  minor, 
J.  B.,  neglect  and  fail  to  exercise  and  do  not  exercise  any  salutary 
control  over  said  minor  child;  and  these  deponents  therefore  pray 
that  a  warrant  be  issued  for  the  arrest  of  said  minor  child,  and 
that  said  minor  child  be  brought  before  the  Honorable  P.  G., 
judge  of  the  police  judge's  court,  of  the  city  and  county  of  San 
Francisco,  and  be  dealt  with  according  to  law,  and  be  sentenced 
and  committed  to  tlie  Industrial  Scfiool  of  tlie  city  and  county  of 
San  Francisco. 


No.  1 153. — Complaint — Threats  to  Commit  Offense. 
[Title  of  Court  and  Cause.] 

A.  B.  C,  complaining  of  S.  D.  B.,  says,  that  on  the  first  of 
August,  190J,  at  the  town  of  PlacerviUe,  in  the  county  of  £/ 
Dorado,  state  of  California,  S.  D.  B.  threatened  to  kill  this  com- 
plainant, and  at  the  said  time  and  place  exhibited  a  shotgun  locuied 
with  powder  and  buckshot,  in  a  condition  ready  to  fire,  and  said 
that  he  would  shoot  complainant  as  soon  as  he  found  him,  and 
that  he  was  then  looking  for  him ;  that  complainant  believes  that 
the  said  S.  D.  B.  will  carry  said  threat  into  execution  as  soon  as 
he  meets  complainant. 

Wherefore,  complainant  prays  that  a  warrant  may  issue  for 
the  arrest  of  said  S.  D.  B.,  and  that  he  may  be  required  to  give 
security  to  keep  the  peace,  as  is  by  law  required  in  such  cases. 

NOTE. — California,  Pen.  C,  sees.  701-706. 


No.  1 1 54. — Complaint  on  Commitment. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California,  to  the  Sheriff  of  the 
County  of  Tehama: 
An  order  having  been  this  day  made  by  me,  that  /.  D.  be  held 
to  answer  upon  a  charge  of  [state  briefly  the  nature  of  the  of- 
fense], committed  in  said  township  and  county,  on  or  about  the 
fifth  day  of  August,  iQoy,  you,  the  said  sheriff,  are  commanded  to 
receive  him,  the  said  /.  D.,  into  your  custody,  and  detain  him 
until  he  is  legally  discharged.  And  I  hereby  order  that  the  said 
/.  D.  be  admitted  to  bail  in  the  sum  of  five  hundred  dollars. 

NOTE. — California,  Pen.  O,  sec  877. 


Justice's  Court.  689 


No.  1 155. — Complaint — Claim  and  Delivery. 

[Title  of  Court  and  Cause.] 

E.  H.,  the  plaintiff,  in  the  above-entitled  action,  complaining^ 
of  N.  S.,  the  defendant  in  the  said  action,  alleges: 

That  on  the  fourth  day  of  June,  1907,  at  the  city  and  county 
of  San  Francisco,  said  plaintiff  was,  and  now  is,  the  ozmier  and 
entitled  to  the  possession  of  the  following  described  personal 
property,  to  wit:    [Description.] 

That  said  personal  property  is  of  the  value  of  two  hundred  and 
fifty  dollars. 

That  said  defendant,  on  the  fourth  day  of  June,  ipoy,  at  the 
county  of  Sacramento,  without  the  plaintiff's  consent,  and  wrong- 
fully, came  into  the  possession  of  said  personal  property,  and 
still  retains  possession  of  the  same,  and  he  claims  to  be  the  owner 
of  the  same. 

That  before  the  commencement  of  this  action,  to  wit,  on  the 
sixth  day  of  June,  iQoy,  at  the  place  last  aforesaid,  the  plaintiff 
demanded  of  the  defendant  the  possession  of  said  personal  prop- 
erty, but  to  deliver  the  possession  thereof  the  defendant  refused 
and  still  refuses. 

That  the  said  defendant  still  unlawfully  withholds  and  detains 
said  property  from  the  possession  of  the  plaintiff,  to  his  damage 
in  the  sum  of  $2j0. 

That  the  same  has  not  been  taken  for  a  tax,  assessment,  or 
fine,  pursuant  to  a  statute,  or  seized  under  an  execution  or  an 
attachment  against  the  property  of  the  plaintiff.  [Or  if  it  had 
been  so  seized  or  attached,  allege  the  fact;  and  aver  that  the  said 
property  is  by  law  exempt  from  execution.] 

Wherefore,  the  plaintiff  demands  judgment  against  the  defend- 
ant for  the  recover)^  of  the  possession  of  said  personal  property, 
or  for  the  sum  of  two  hundred  and  fifty  dollars,  the  value  thereof, 
in  case  a  delivery  cannot  be  had,  together  with  twenty  dollars, 
damages,  and  for  costs  of  suit 

(All  courts.) 

NOTE. — The  provisions  of  the  codes  and  str.tntes  relating  to  "claim 
and  delivery  of  personal  property,"  are  substantially  the  same  in  a 
JTistice's  and  superior  court.  For  forms,  see  Superior  Court.  See  Cali- 
fornia, C.  C.  P.,  sec  870,  and  references  in  similar  actions  in  superior 
courts. 

New  Forma — ti 


690  New  Book  of  Forms. 


No.    1 1 56. — Complaint — Holding  After   Expiration   of  Term. 
[Title  of  Court  and  Cause.] 

F.  A.,  a  resident  of  the  county  of  Sierra,  the  plaintiff  in  the 
above-entitled  action,  complaining  of  H.  S.,  of  the  county  of 
Sierra,  the  defendant  in  said  action,  alleges: 

That  on  or  about  the  third  day  of  Janiiary,  igo6,  the  said  plain- 
tiff, by  a  verbal  lease  made  on  or  about  the  said  day,  at  the 
county  of  Sierra,  leased,  demised,  and  let  to  the  said  defendant, 
H.  S.,  of  the  said  county  of  Sierra,  the  premises  situate,  lying 
being  in  the  said  county  of  Sierra,  state  of  California,  and  de- 
scribed as  follows,  to  wit:  All  that  hank  building  on  the  north- 
east corner  of  San  Francisco  street  and  Marysville  place. 

To  have  and  to  hold  the  said  premises  to  the  defendant  for 
the  term  of  one  month,  from  the  third  day  of  January,  igo6,  at 
the  monthly  rent  of  twenty-Uve  dollars,  payable  on  the  third  day 
of  the  month,  in  advance.  That  by  virtue  of  said  lease,  said  de- 
fendant went  into  possession  of  said  premises,  and  he  still  con- 
tinues to  hold  and  occupy  the  same. 

That  the  term  for  which  said  premises  were  demised,  as  afore- 
said, has  terminated,  and  that  the  said  defendant  holds  over  and 
continues  in  possession  of  said  demised  premises,  without  the 
permission  of  the  said  plaintiff,  and  contrary  to  the  terms  of  said 
lease. 

That  the  said  plaintiff,  since  the  expiration  of  the  term  for 
which  said  premises  were  demised,  as  aforesaid,  to  wit,  on  the 
fourth  day  of  February,  ipo6,  made  demand  in  writing  of  the 
said  defendant  to  deliver  up  and  surrender  to  plaintiff  the  pos- 
session of  said  premises. 

That  more  than  three  days  have  elapsed  since  the  making  of 
such  demand,  and  the  defendant  has  refused  and  neglected,  for 
the  space  of  three  days  after  such  demand,  to  quit  the  possession 
of  the  said  demised  premises,  and  still  does  refuse. 

That  the  monthly  value  of  the  rents  and  profits  of  the  said 
premises  is  the  sum  of  twenty-five  .dollars. 

Wherefore,  the  said  plaintiff  prays  judgment  for  the  restitu- 
tion of  the  said  premises,  and  for  damages  for  the  rents  and 
profits  of  said  premises,  and  that  such  damages  may  be  trebled 
as  daynages  for  the  occupation  and  unlawful  detention  and  hold- 
ing over  of  the  same,  amounting  to  the  sum  of  twenty-five  dol- 
lars per  month,  besides  costs  of  suit. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec.  1161. 


Justice's  Court.  691 


No.    1 1 57. — Complaint — Holding  After  Rent  Due. 

[Title  of  Court  and  Cause.] 

D.  F.,  a  resident  of  the  county  of  Sierra,  the  plaintii'f  in  the 
above-entitled  action,  complaining  of  /.  B.,  of  the  county  of 
Sierra,  the  defendant  in  said  action,  alleges : 

1.  That  on  or  about  the  first  day  of  January,  190J,  the  said 
plaintiflF,  by  a  verbal  agreement  and  lease,  made  on  or  about  the 
said  day,  at  the  city  and  county  of  San  Francisco,  leased,  demised, 
and  let  to  the  said  defendant,  of  the  said  city  and  county  of  San 
Francisco,  the  premises  situate,  lying,  and  being  in  the  city  and 
county  of  San  Francisco,  state  of  California,  and  described  as  fol- 
lows, to  wit:   [Description.] 

To  have  and  to  hold  the  said  premises  to  the  defendant  at  the 
monthly  rent  of  twenty  dollars,  payable  monthly  on  the  first  day 
of  each  and  every  month  thereafter,  in  advance,  in  gold  coin  of 
the  United  States. 

2.  That  by  virtue  of  said  agreement  and  lease,  so  made  as 
aforesaid,  the  defendant  zvent  into  the  possession  and  occupation 
of  said  demised  premises,  and  still  continues  to  hold  the  same,  as 
tenant  of  said  plaintiff. 

3.  That  pursuant  to  the  terms  of  said  agreement  and  lease, 
there  became  and  was  due  on  the  first  day  of  June,  igoj,  from 
said  defendant  to  said  plaintiff,  for  the  rent  of  said  premises 
for  one  month,  to  wit,  from  the  first  day  of  Ma'^,  igoj,  to  the 
first  day  of  June,  1907,  the  sum  of  twenty  dollars,  gold  coin  of 
the  United  States,  amounting  to  the  sum  of  $20. 

4.  That  on  a  certain  day,  to  wit,  the  third  day  of  June,  iQoy, 
at  said  city  and  county,  demand  in  writing  was  dulv  made  by 
said  plaintifif  of  said  defendant,  for,  and  requiring  the  payment 
of,  said  rent  then  due,  amounting  to  the  said  sum  of  twenty  dol- 
lars, or  the  possession  of  the  said  demised  property,  but  said 
defendant  neglected  and  refused,  for  the  space  of  three  days, 
after  demand  so  made  as  aforesaid,  and  still  neglects  and  refuses, 
to  pay  said  rent,  or  surrender  possession  of  said  premises. 

5.  The  said  defendant  unlawfully  holds  over  and  continues  in 
the  possession  of  said  premises  after  default  in  the  payment  of 
the  rent,  pursuant  to  the  lease  and  agreement  under  zvhich  said 
property  is  held,  and  zvithout  the  permission  of  the  plaintiff;  by 
reason  whereof  the  plaintiff  has  already  sustained  damages  in 
the  sum  of  ttventy  dollars,  gold  coin  of  the  United  States  for  the 
rent  of  said  premises  actually  accrued  from  the  first  day  of  Ma\, 
Ipo/,  to  the  first  day  of  June,  igoj. 


692  New  Book  of  Forms. 

Wherefore,  said  plaintiff  prays  judgment  against  said  defend- 
ant for  the  restitution  and  possession  of  said  premises,  and  for 
the  sum  of  twenty  dollars,  the  amount  now  due  and  unpaid  for 
the  rent  thereof,  and  such  further  sum  as  may  accrue  from  the 
time  of  tiling  this  complaint  to  the  rendition  of  judgment  herein; 
and  that  the  amount  found  due  for  rent  may  be  trebled  and  made 
payable  in  the  gold  coin  of  the  United  States,  and  also  for  the 
costs  of  this  suit,  and  that,  by  said  judgment  it  be  declared  that 
said  lease  (or  agreement)  under  which  said  defendant  holds  shall 
be  forfeited. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  see.  1161.  In  California  and  elsewhere 
or  the  Pacific  Coast,  the  proceedings  in  this  class  of  cases  are  the 
same,  substantially,  in  a  justice's  as  in  a  superior  court.  The  only- 
material  difference  is  in  the  amount  of  rent  due  under  the  terms  of 
the  tenancy.  See  the  citations  under  similar  forms  used  in  the  superior 
courts. 


No.  1 1 58. — Controversy — Submission  of  Without  Action. 

[Title  of  Court  and  Cause.] 

It  is  stipulated  between  the  parties  hereto,  as  follows: 
A.  B.,  the  plaintiff,  was,  on  the  first  day  of  May,  1907,  a  real 
estate  agent.  At  the  same  time  C.  D.,  the  defendant,  owned  a 
tract  of  land  in  said  county  and  township ;  that  hath  plaintiff  and 
defendant  reside  in  said  township;  that  on  said  day  it  was 
verbally  agreed  between  plaintiff  and  defendant  that  if  plain- 
tiff within  three  months  zvould  find  a  purchaser  who  zvould 
pay  ten  thousand  dollars  for  said  land,  that  defendant,  on  de- 
mand, would  pay  plaintiff  $330;  that  on  the  third  day  of  June, 
190J,  plaintiff  found  a  purchaser,  to  zvhom  defendant,  on  June 
10,  IQO/,  granted  said  land  for  ten  thousand  dollars;  that  on  the 
tenth  day  of  said  month  of  June,  plaintiff  demanded  of  defend- 
ant $330,  zuhich  defendant  refused  to  pay,  and  never  has  paid. 
It  is  further  stipulated  that  this  controversy  shall  be,  and  the 
same  is,  hereby  submitted  for  judgment  without  further  testi- 
mony. 

State  of  California, 
County  of  Lake, — ss. 

A.  B.  and  C.  D.,  being  each  duly  sworn,  says  eacli  for  himself, 
and  not  one  for  the  other,  that  the  statements  contained  in  the 
foregoing  stipulation  are  true,  and  occurred  precisely  as  therein 
stated ;  that  this  proceeding  is  instituted  in  good  faith  to  deter- 
mine the  rights  of  said  parties. 

(All  courts.) 

NOTE.— California,  C.  a  P^  sees.  113&-1140t 


Justice's  CoxmT.  693 


No.  1 1 59. — Docket — ^Justice  of  Peace. 

State  of  California, 
County  of  Sierra. 

In  Justice's  Court,  Butte  Township. 
J.  S. 

V. 

H.  B. 

June  I,  jpoy. — Complaint  in  writing  filed  by  /.  S.  to  recover  of 
defendant  H.  B.,  one  hundred  dollars  for  goods  sold  and  deliv- 
ered, and  summons  issued  dated  this  day.  Writ  of  attachment 
issued  to  the  sheriff  of  said  county. 

June  2,  1907. — Summons  returned  served  in  this  township. 

June  y,  igoy. — Plaintiff  appeared  in  person  in  court  at  ter^ 
o'clock  A.  M.  Defendant  also  appeared  in  person  and  orally  an- 
swered the  complaint  herein  as  follows,  to  wit:  "Now  comes  the 
defendant,  and  answering  plaintiff's  complaint,  denies  each  and 
every  allegation  thereof."  Whereupon,  Tuesday,  June  10,  iQoy, 
at  the  hour  of  ten  A.  M.,  was  fixed  for  the  trial  hereof,  and  the 
plaintiff  and  defendant  were  by  me  then  and  tliere  notified  of 
the  time  fixed  for  trial. 

June  10,  iQoy. — At  ten  o'clock  A.  M.,  both  parties  appeared 
in  person,  and  I  being  engaged  in  the  trial  of  another  action, 
postponed  the  trial  hereof  until  to-morrow  at  ten  o'clock  A.  M. 

June  II,  iQoy. — At  ten  o'clock  A.  M.  both  parties  appeared, 
and  on  motion  of  defendant  the  trial  was  postponed  until  the 
28th  day  of  August,  igoj,  at  two  o'clock  P.  M. 

August  28.  1907. — At  t%vo  o'clock  p.  M.,  both  parties  appeared 
and  announced  themselves  ready  for  trial,  and  the  plaintiff  de- 
manded a  trial  by  jury.  Wherefore,  I  issued  an  order  for  a  jury 
of  twelve  men  to  be  summoned  as  by  law  directed,  returnable  to- 
morrow at  ten  A.  M.,  that  being  the  time  fixed  for  the  trial. 

August  29,  1907.— At  ten  o'clock  A.  M.  the  following  named 
jurors  appeared  and  answered  as  their  names  were  called:  [In- 
sert names.]  The  following  named  jurors  were  challenged  by 
defendant  for  cause,  and  the  challenges  allowed,  and  said  jurors 
excused  [insert  names]  ;  and  the  following  named  jurors  were 
challenged  by  plaintiff  and  the  challenges  allowed,  and  the  jurors 
excused  [insert  names].  Whereupon,  an  order  was  made  as  by 
law  required,  returnable  forthwith,  for  the  summoning  of  six 
jurors  to  complete  the  panel,  and  tlie   following  named  jurors 


694  ^E^^'  Book  of  Forms. 

were  summoned  and  appeared  in  compliance  with  said  order.* 
The  jury  having  been  completed,  the  following  named  jurors 
were  sworn  to  try  the  issue  involved  herein,  viz.  [insert  names]. 
The  following  named  witnesses  were  sworn  and  examined  on 
the  part  of  the  plaintiff,  viz.  [insert  names]  ;  and  the  following 
were  sworn  and  examined  on  the  part  of  defendant:  [Insert 
names.]  After  argument  by  the  parties,  the  jury  were  instructed 
as  to  the  law  and  retired  to  deliberate,  returned  into  court  and 
rendered  a  verdict  for  defendant  and  were  then  discharged. 
Wherefore  judgment  is,  this  2pth  day  of  August,  1907,  given 
for  defendant,  and  against  plaintiff,  for  forty-iive  dollars  costs, 
which  said  costs  were  taxed  by  me. 

August  JO,  igoj. — Execution  for  forty-five  dollars  was  issued 
against  plaintiff,  on  demand  of  defendant,  to  A.  B.,  Esq.,  con- 
stable of  this  township. 

September  10,  1907. — Execution  returned  satisfied.  Received 
of  A.  B.,  Esq.,  constable,  forty-five  dollars  collected  by  him  on 
execution  herein. 

September  10,  1907. — Judgment  satisfied. 

F.  A.,  J.  P. 

NOTE.— California,   C.   C.   P.,   sees.   911-918. 

No.  1 160. — Docket — Certified  Copy. 

[Title  of  Court  and  Cause.] 

To  the  County  Clerk  of  the  County  of  Alameda,  State  of  Cali- 
fornia; 

I  hereby  certify  that  the  following  is  a  copy  of  my  docket  en- 
try in  the  above-entitled  action,  viz. : 

This  case  came  on  to  be  heard  before  me  on  the  complaint, 
summons,  demurrer  to  complaint,  and  verified  answer  of  defend- 
ant, and  it  appearing  from  said  answer  that  the  determination  of 
said  action  will  necessarily  involve  the  question  [of  title  or  pos- 
session to  real  property,  or  the  legality  of  any  tax,  impost,  assess- 
ment, toll,  or  municipal  fine,  as  the  case  m^y  be],  I  therefore 
suspend  all  proceedings  in  this  action. 

NOTE.— California,  C.  C.  P.,  sec.  838. 


*If  the  trial  is  by  the  court,  so  state,  without  allusion  to  a  jury. 
If  the  jury  disagree  and  is  discharged,  so  state.  If  another  jury  is 
Bunimoned,  use  the  same  form,  after  stating  the  disagreement  and  dis- 
charge of  the  first  jury.  If  after  disagreement  a  jury  is  waived,  so 
state.  If  the  execution  is  returned  unsatisfied,  state  the  fact;  and  if 
an  alias  execution  is  issued,  state  the  fact  and  its  return.  State  the 
dates  of  renewals.  If  ajjpeal  be  taken  by  the  plaintiff,  state  that  fact, 
as-  "August  30  [or  any  date],  received  of  plaintiff  written  notice  of 
appeal  on  questions  of  both  law  and  fact,"  or  "on  questions  of  law." 
If  an  appeal  bond  is  filed,  state  the  fact.  If  money  is  deposited  in  lieu 
of  a  bond,  state  the   amount. 


Justice's  Court. 


695 


JUDGMKNT.— 

Judgment $i^o  oo 


Costs. 


Accruing  Costs. — 
Execution  and  Fil- 
ing  

Levy 

Advertisement. . .. 
Keeping 


$i6i  00 


No.  1161. — Execirtion. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California,  to  the  Sheriff  or  any  Con- 
stable of  the  County  of  Ytiba,  Greeting: 

Whereas  a  judgment  was  ren- 
dered before  me,  A.  G.,  a  justice 
of  the  peace  of  East  Bear  town- 
ship, in  said  county  of  Yuba,  on 
the  first  day  of  August,  1907, 
against  /.  D.,  defendant,  and  in 
favor  of  R.  R.,  plaintiff,  for  the 
sum  of  one  hundred  and  fifty  dol- 
lars damages,  and  eleven  dollars 
costs  of  suit,  zvhich  said  judgment 
was  made  payable  in  gold  coin  of 
$164  30)    ^^^   United  States. 

These  are,  therefore,  to  command  you,  that  out  of  the  per- 
sonal  property,  and  if  sufficient  personal  property  cannot  be 
found,  then  out  of  the  real  property  of  said  /.  D.,  you  levy  and 
cause  to  be  made  by  sale,  in  gold  coin  of  the  United  States,  the 
said  amount  of  one  hundred  and  fifty  dollars  damages,  and  eleven 
dollars  costs  of  suit,  together  with  any  costs  that  may  accrue,  and 
of  this  writ  make  legal  service  and  due  return  within  sixty  days 
after  your  receipt  thereof. 

NOTE. — California,  C.  C   P.,  sec  902, 


0  30 

2  00 

1  00 


No.    1162. — Execution — Costs. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California,  to  the  Sheriff  or  any  Con- 
stable of  said  County,  Greeting: 

Whereas,  a  judgment  was  rendered  by  H.  J.  IV.,  the  under- 
signed, a  justice  of  the  peace  of  said  township,  county  of  San 
Mateo,  on  the  first  day  of  May,  190J,  against  /.  S.,  in  the  action 
of  /.  S.  V.  5".  B.,  for  costs ;  and  whereas,  the  sum  of  tivcnty  dol- 
lars is  due  the  un.jersigned  from  the  said  /.  S.,  plaintiff,  for  his 
fees  in  said  action  due  as  by  law  provided : 

These  are  therefore  to  command  you,  the  said  sheriff,  that 
out  of  the  personal  property,  and  if  sufficient  personal  property 
cannot  be  found,  then  out  of  the  real  property  of  said  /.  S.,  yoii 
levy  and  cause  to  be  made  by  sale,  the  said  amount  of  twenty 


696  New  Book  of  Forms. 

dollars,  fees  due  as  aforesaid,  together  with  any  costs  that  may 
accrue ;  and  of  this  writ  make  legal  service  and  due  return  within 
sixty  days  after  your  receipt  hereof,  with  what  you  have  done 
indorsed  hereon. 

NOTE. — A  justice,  not  under  salary,  but  compensated  by  statutory 
fees,  enters  his  unpaid  fees  in  the  judgment,  and  notwithstanding  the 
fact  that  he  may  be  the  only  one  beneficially  interested  in  the  judg- 
ment, issue  execution  in  the  name  of  the  prevailing  party  for  his  costs: 
California,  C.  C.  P.,  sec.  896. 


No.  1 163. — Execution — Renewal — Indorsement. 

The  within  execution  is  this  day  renewed  at  the  request  of  the 
judgment  creditor. 

NOTE. — California,  C.  C.  P.,  see.  903.  It  may  be  renewed  as  often 
as  necessary  before  the  expiration  of  the  time  for  its  return.  E?moval 
does  not  change  the  time  of  return.  If  more  time  is  necessary,  return 
it  unsatisfied  and  issue  another. 


No.   II 64. — Execution — Certificate — Redemption. 

[Title  of  Court  and  Cause.] 

I  hereby  certify  that  A.  B.  C,  the  judgment  debtor  in  the  case 
of  C.  D.  F.  V.  A.  B.  C,  has  redeemed  from  me  the  following 
described  real  estate  [description],  sold  under  execution  to  sat- 
isfy said  judgment,  and  purchased  by  me  at  the  execution  sale 
thereof;  and  said  judgment  and  sale  are  no  longer  liens  on  said 
property. 

(All  courts.) 

NOTE. — California,  C.  C.  P.,  sec  703   (must  be  acknowledged). 


No.    1 165. — Execution — Property   Claimed  by   Third  Person. 

[Title  of  Court  and  Cause.] 

Please  take  notice  that  I  am  the  owner  of  the  following  de- 
scribed property  upon  which  you  have  levied  execution  in  the 
above-entitled  action,  viz.:  [Description.]  My  title  to  it  is  a 
grant  from  A.  B.  C,  to  me,  executed  and  acknowledged  and  de- 
livered to  me,  and  is  of  record  in  the  office  of  the  county  recorder 
of  Butte  county,  m  volume  No.  ip/  of  Deeds,  at  pages  iy6~i/p. 

Signed,  verified  and  served  upon  the  sheriff  or  constable. 

(All  courts.) 

NOTE. — California,  C.  C.  P.,  sec.  689. 


Justice's  Court.  697 

No.   1 1 66, — Exempt — Claim  Proi>erty  by  Third  Party. 

[Title  of  Court  and  Cause.] 

Yon  will  please  take  notice  that  the  following  described  prop- 
erty, to  wit  [description],  levied  on  by  you  under  the  writ  of  ex- 
ecution issued  in  the  above-entitled  action,  is  exempt  from  execu- 
tion, and  the  defendant  herein  claims  the  same  as  exempt,  and 
you  are  requested  to  forthwith  release  your  levy  on  said  property 
and  restore  it  to  defendant 

(All  courts.) 

NOTE. — Snch  claim  need  not  be  m  WTiting.  When  the  oflicer  has 
notice  that  property  is  exempt  he  is  liable  if  he  sella  it.  In  such 
ease  it  is  the  practice  for  the  oflScer  to  exact  indemnity  before  sale: 
CaL,  C.  C.  P.,  sec  689, 

No.  1 167. — Guardian — Application — Appointment  of. 
[Title  of  Court  and  Cause.] 

L.  M.  Y.  represents  to  the  court  that  the  plaintiff  in  interest 
therein,  B.  W.,  is  under  age  of  fourteen  years  [or  insane,  incom- 
petent, etc.]  ;  that  he  has  no  general  guardian;  that  applicant  is  a 
friend,  and  also  the  attorney  for  said  B.  W.  in  said  action ;  and 
that  it  is  necessary  for  said  B.  W.  to  have  a  guardian  ad  litem 
in  said  action. 

Wherefore,  he  prays  that  he  may  be  appointed  guardian  ad 
litem  for  said  infant  in  said  action. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec.  843. 

No.   1 168. — Guardian — Appointment  of. 
[Title  of  Court  and  Cause.] 

Upon  reading  and  filing  the  application  of  L.  M.  Y.,  Esq.,  a 
friend  of  B.  IV.,  an  infant  under  the  age  of  fourteen  years,  and  it 
appearing  that  sufficient  grounds  exist  therefor,  it  is  ordered  that 
said  L.  M.  Y.,  Esq.,  be  and  he  is  hereby  appointed  guardian  ad 
litem  for  said  infant  in  said  action. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec.  843. 

No,  1 1 69. — Inspection,  Request  for. 
[Title  of  Court  and  Cause.] 

To  A.  B.  C,  justice,  etc. :  The  plaintiflF  [or  defendant]  demands 
an  inspection  and  copy  of  the  account  [or  instru)ne>it\   set  up  in 


6gS  New  Book  of  Forms. 

the  answer  herein  as  a  counterclaim    [or  described  in  tlie  com- 
plaint as  the  foundation  of  plaintiff's  cause  of  action]. 
(xA.ll  courts.) 

NOTE. — California,  C.  C.  P.,  see.  896. 

No.  1 1 70. — Execution — Instructions  to  Officer. 
[Title  of  Court  and  Cause.] 

You  are  "hereby  directed  to  levy,  by  virtue  of  the  writ  of  exe- 
cution issued  in  the  above-entitled  suit  herewith  handed  to  you, 
on  all  the  right,  title,  and  interest  of  A.  L.  C,  the  therein  named 
defendant,  in  and  to  the  following  described  real  estate,  situate, 
lying,  and  being  in  the  county  of  Butte,  standing  of  record  in 
the  office  of  the  county  recorder  of  said  county  in  the  name  of 
C.  L.  P.   [or  the  defendant],  viz.   [particular  description]. 

(All  courts.) 

NOTE. — An  officer  is  not  obligated  to  search  for  property  upon 
which  he  may  levy.  If  he  knows  of  such  property,  it  is  his  duty  to 
make  a  levy.  An  officer  is  never  supposed  to  be  conscious  of  such  facta. 
However,  it  has  always  been  the  practice  to  give  special  instructions  to 
the  officer  who  holds  a  writ  of  execution  or  other  similar  writ.  As  to 
attachments,  the  California  Code  of  Civil  Procedure,  section  543,  directs 
j  Bach  instructions  to  be  given. 

No.  1 171. — Instructions  to  Officer. 
[Title  of  Court  and  Cause.] 

You  will  please  take  notice  that  you  are  directed  to  levy  on 
the  following  described  property  to  satisfy  the  judgment  and 
costs  in  said  action. 

(All  courts.) 

NOTE. — California,  C.  C.  P.,  sec.  691.  This  may  be  done  by  a  de- 
fendant when  there  is  more  property  of  his  (the  judgment  debtor's) 
within  view  of  the  officer  than  is  sufficient  to  satisfy  the  judgment  and 
accruing  costs. 

No.   1 172. — Instructions  to  Officer. 

[Title  of  Court  and  Cause.] 

You  are  hereby  instructed  to  levy  on,  by  virtue  of  the  accom- 
panying writ  in  the  above-entitled  suit,  the  following  described 
property,  to  wit:  All  moneys,  credits,  effects,  and  debts  due  or 
owing  in  the  hands  or  under  the  control  of  A.  B.  C,  of  No.  128  A 
street,  Sacramento,  belonging  to  A.  R.  S.,  the  defendant  in  the 
above-entitled  action. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec  54i 


Justice's  Court.  699 

No.  1 1 73. — Instructions  to  Officer. 

[Title  of  Court  and  Cause.] 

To  C.  B.,  Esq.,  Constable  Bush  Street  Toimiship,  Alameda: 

By  authority  of  the  writ  of  attachment  issued  in  the  above- 
entitled  action,  you  will  please  attach  and  safely  keep  all  of  the 
following  described  property:    [Description.] 

And  you  are  hereby  notified  that  S.  K.,  Esq.    [not  a  defend- 
ant], has  in  his  possession  the  following  property  belonging  to 
defendant :   [  Description.  ] 
(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec  542. 


No.  II74- — Instructions  to  Officer — Personalty. 

[Title  of  Court  and  Cause.] 

You  are  hereby  instructed  to  levy,  by  virtue  of  the  accompany- 
ing writ  in  the  above-entitled  suit,  on  the  following  described 
property  at  plaintiff's  expense  [or  place  a  keeper  in  charge,  if 
the  defendant  will  advance  the  expense;  or  if  he  will  assent  there- 
to, the  charges  to  he  added  as  costs;  or  you  are  instructed  to 
remove  the  said  property,  unless  the  defendant  requests  you  to 
place  a  keeper  in  charge,  etc.]. 
(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec.  543. 


No.   1 1 75. — Judgment — Arrest  oL 
[Title  of  Court  and  Cause.] 

In  this  case  judgment  is  given  for  plaintiff  and  against  de- 
fendant for  two  hundred  and  fifty  dollars,  and  costs  taxed  at  sev- 
enteen dollars,  and  it  appearing  that  defendant  is  about  to  de- 
part from  the  state  with  intent  to  defraud  his  creditors  [or  if 
for  any  other  reason  he  is  subject  to  arrest  and  imprisonment], 
he  is  therefore  subject  to  arrest  and  imprisonment  under  this 
judgment. 

Judgment    $250 

Costs    17 


$267 
(All  courts.) 

NOTE. — When  judgrmont  is  rendered  in  a  rase  whore  the  dofondnnt 
ia  subject  to  arrest  and  imprisonment  thereon,  the  fact  that  he  is  so 
Bubjeet  must  be  stated  in  the  judgment:   CaL  C.  C.  P.,  see.  893. 


7O0  New  Book  of  Forms. 


No.    1 1 76. — Judgment — Confession — Money    Received- 

[Title  of  Court  and  Cause.] 

I,  C.  D.,  defendant  above  named,  do  hereby  confess  judgment 
in  this  case  in  favor  of  said  plaintiff,  A.  B.,  for  the  sum  of  two 
hundred  and  ninety-nine  dollars  and  ninety-nine  cents,  and  I 
hereby  authorize  the  said  justices  of  the  peace  to  enter  judgment 
therein  therefor  against  me  for  said  sum,  together  with  the  costs 
of  entering  the  same,  with  legal  interest  thereon  from  date. 

This  confession  of  judgment  is  for  a  debt  now  justly  due  and 
owing  to  the  said  plaintiff,  arising  from  the  following  facts,  to 
wit:  On  June  j,  1904,  I  borrowed  of  A.  B.  $200,  and  promised 
to  pay  him  said  amount  on  July  i,  1905,  with  interest  thereon 
July  I,  1904,  at  10  per  cent  a  year  until  paid.  That  I  have  not 
paid  A.  B.  any  part  of  said  principal,  nor  have  I  paid  him  any 
interest,  and  there  is  due  him  at  this  date,  to  wit,  July  i,  1906, 
$200  and  $20  interest ;  nor  have  I  any  offset  to  said  amount  or 
any  part  thereof. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

C.  D.,  the  defendant  above  named,  being  duly  sworn,  deposes 
and  says,  that  the  foregoing  statement  is  true  of  his  own  knowl- 
edge. 

(All  courts.) 

NOTE.— California,   C.   C.  P.,  sees.   112,   1122-1135. 


No.  1 177. — Judgment — Confession — Docket  Entry. 
[Title  of  Court  and  Cause.] 

In  this  action  the  defendant,  C.  D.,  having  filed  his  confession 
of  judgment,  wherein  he  consents  that  judgment  be  entered  in 
iavor  of  the  plaintiff,  A.  B.,  for  the  sum  of  tzvo  hundred  and 
ninety-nine  dollars;  wherefore,  it  is  adjudged  that  A.  B.,  plain- 
tiff, do  have  and  recover  of  and  from  C.  D.,  defendant,  the  sum 
of  two  hundred  ($200)  dollars,  and  twenty  dollars  interest  there- 
on, together  with  three  dollars  costs  incurred  in  this  proceeding, 
said  principal,  interest,  and  costs  amounting  to  the  sum  of  tivo 
hundred  and  twenty-nine  dollars.  Judgment  entered  July  10, 
190]. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.   1132-1135. 


Justice's  Court.  701 

No.  1 1 78. — Judgment — Damages  in  Lieu  of  Return. 
[Title  of  Court  and  Cause.] 

In  this  case,  it  appearing  that  the  property  described  in  the 
complaint  has  been  delivered  to  plaintiff,  and  the  defendant 
claiming  a  return  thereof,  and  it  appearing  that  a  return  cannot 
be  had,  judgment  is  given  against  plaintiff  for  $200,  the  value  of 
said  property,  and  $100  taxed  costs. 

(All  courts.) 

No.  1 179. — Judgment  for  Defendant. 

[Title  of  Court  and  Cause.] 

In  this  case  judgment  is  given  against  plaintiff  and  for  defend- 
ant for  thirteen  dollars,  taxed  costs. 

No.   1 180. — Judgment  for  Plaintiff — Counterclaim. 

[Title  of  Court  and  Cause.] 

In  this  case  the  defendant's  counterclaim  against  plaintiff  be- 
ing equal  to  plaintiff's  demand,  judgment  is  given  for  plaintiff 
for  nine  dollars  taxed  costs. 

NOTE.— California,  C.  C.  P.,  sees.  855,  856 

No.  1 181. — Judgment  for  Defendant — Coimterclaim. 

[Title  of  Court  and  Cause.] 

In  this  case  the  defendant's  counterclaim  against  plaintiff  ex- 
ceeding plaintiff's  demand  against  him,  judgment  is  given  for 
defendant  against  plaintiff  for  two  hundred  and  fifty-three  dol- 
lars, principal,  and  eighty-four  dollars,  costs. 

Judgment    ^i>5j 

Costs 84 


$337 
NOTE.— California,  C.  C.  P.,  sees.  855,  856. 

No.  1 182. — Judgment — Fiduciary  Capacity. 
[Title  of  Court  and  Cause.] 

In  this  case,  it  appearing  that  defendant  received  of  plaintiff 
the  t7vo  hundred  and  seven  dollars,  in  gold  coin  described  in  the 
complaint,  as  the  agent  of  plaintiff,  judgment  is  given  for  plain- 
tiff and  against  defendant  for  tzvo  hundred  and  seven  dollars  in 
gold  coin,  and  twelve  dollars,  costs. 


702  New  Book  of  Forms. 

Judgment   $2oy 

Costs    12 


$219 


NOTE. — In  actions  agarnst  an  agent  to  recover  money  received  by 
him  for  hi:3  principal,  the  judgment  must  be  made  payable  in  the  kmd 
of  money  or  currency  received  by  him:  Gal.  C.  C.  P.,  sec.  667. 


No.  11S3. — Judgment — Fine  and  Imprisonment, 
[Title  of  Court  and  Cause.] 

[Title  of  court,  and  continue  the  same  as  Form  No.  1184,  down 
to  "Wherefore."] 

Wherefore,  it  is  by  the  court  here  ordered  and  adjudged  that 
for  said  offense  you,  the  said  R.  R.,  do  pay  a  fine  in  the  sum  of 
$50,  and  be  imprisoned  in  the  county  jail  of  said  San  Mateo 
county  until  the  said  fine  be  paid,  not  exceeding  twenty-Uve  days. 

Done  in  open  court,  etc. 

NOTE.— California,  Pen.  C,  sec.   1446. 

No.    1 184. — Judgment — Imprisonment. 
[Title  of  Court  and  Cause.] 

A  complaint,  under  oath,  having  been  filed  in  this  court  on 
the  sixteenth  day  of  July,  igoj,  charging  said  defendant,  R.  R., 
of  certain  public  offenses,  to  wit,  battery  upon  the  person  of  /. 
D.,  a  misdemeanor,  committed  on  the  thirteenth  day  of  July, 
ipoy,  and  a  warrant  of  arrest  having  been  duly  issued  on  said 
sixteenth  day  of  July,  igoj,  for  the  arrest  of  said  defendant,  and 
said  defendant,  R.  R.,  having  been  duly  arrested,  and  thereafter, 
on  the  seventeenth  day  of  July,  igoy,  tried  before  this  court,  with- 
out a  jury,  a  jury  trial  having  been  zvaivcd,  as  provided  by  law 
in  such  cases,  and  by  the  court  found  guilty,  as  charged  in  the 
complaint;  and  all  and  singular,  the  lazv  and  the  premises  being 
by  the  court  here  understood  and  fully  considered,  and  no  suffi- 
cient cause  appearing  to  the  court  why  judgment  should  not  be 
pronounced  against  said  R.  R. 

Wherefore,  it  is  by  the  court  here  ordered  and  adjudged  that 
for  said  ofifense  you,  the  said  R.  R.,  be  imprisoned  in  the  county 
jail  of  said  county  of  San  Mateo,  for  the  term  of  five  months  and 
fifteen  days,  or  that  for  said  offense  you,  the  said  R.  R.',  be  fined 
one  hundred  dollars  [and  be  imprisoned  until  the  said  fine  is 
satisfied,  in  the  proportion  of  one  day's  imprisonment  for  every 
dollar  of  said  fine]. 

[The  words  in  brackets  to  be  inserted  if  both  fine  and  imprisonment 
may  be  inflicted.] 


Justice's  Court.  703 

Office  of  Justice  of  the  Peace, 

Pulgas  Township,  County  of  San  Mateo, — ss. 

I,  G.  W.  F.,  justice  of  the  peace  of  the  county  of  San  Mateo, 
do  hereby  certify  the  foregoing  to  be  a  full,  true,  and  correct 
copy  of  the  judgment  duly  made  and  entered  on  the  minutes  of 
the  said  justice's  court  in  the  above-entitled  action,  on  the  ni)ie- 
teenth  day  of  Jxily,  igoj. 

Attest  my  hand,  at  the  township  of  Pulgas,  in  the  county  of 
San  Mateo,  this  tzvcnticth  day  of  July,  ig>oy. 

JdOTE. — In  California,  when  the  defendant  pleads  guilty,  or  is  con- 
victed, the  court  rcndors  judgment  of  fine  or  imprisonment,  or  botli. 
A  judgment  of  fine  may  also  direct  that  he  be  imprisoned  until  the 
tine  is  satisfied:  Pen.  Code,  sees.  1445,  1446. 

No.   1 185. — Judgment — Plaintiff — Money  Demand. 

[Title  of  Court  and  Cause.] 

In  this  case  judgment  is  given  for  plaintiff  for  one  hundred 
and  seventy  dollars  and  ten  cents  principal  and  interest,  and  nine 
dollars  taxed  costs. 

Judgment    $iyo  10 

Costs    p  00 


$i/P  10 


No.  1 186. — Judgment — Personal  Property. 

[Title  of  Court  and  Cause.] 

In  this  case  judgment  is  given  against  defendant  and  for  plain- 
tiff for  the  possession  of  all  personal  property  described  in  the 
complaint  herein,  and  one  hundred  dollars  damages  for  the  de- 
tention thereof  by  defendant,  and  thirty  dollars  taxed  costs. 

]^OTE.— California,  C.  C.  I.,  sec.  667. 

No.   1 187. — Judgment — Value — Personal  Property. 
[Title  of  Court  and  Cause.] 

In  this  case,  it  appearing  that  the  delivery  of  the  property  de- 
scribed in  the  complaint  cannot  be  had,  judgment  is  given  for 
plaintiff  for  t^vo  htindrcd  and  ninety-nine  dollars,  tlie  value  there- 
of, and  one  liuiidrcd  dollars  taxed  costs. 

Judgment    $200 

Cosrs   100 


$399 
NOTE.— California,  C.  C.  P.,  sec.  6G7. 


704  New  Book  op  Forms. 

No.    1 1 88. — Judgment — Return — Property. 
[Title  of  Court  and  Cause.] 

In  this  case,  it  appearing  that  the  property  described  in  the 
complaint  has  been  delivered  to  the  plaintiff,  and  the  defendant 
claiming  a  return  thereof,  judgment  is  given  against  plaintiff  for 
the  return  of  said  property  to  defendant,  and  ^700  damages  for 
taking  and  withholding  the  same,  and  $p  taxed  costs. 

NOTE.— California,  C.  C.  P.,  sec.  667. 


No.  1 189. — Juror — Summons. 
[Title  of  Court  and  Cause.] 

To  Mr.  G.  W.  W.  : 

You  are  hereby  notified  and  required  to  attend  before  C.  K., 
one  of  the  justices  of  the  peace  of  Butte  Creek  township,  on  the 
third  day  of  April,  iQoy,  at  nine  o'clock  A.  M.,  at  the  courtroom 
of  said  justice  of  the  peace,  in  said  township,  in  the  county  of 
Colusa,  then  and  there  to  serve  as  a  juror. 

By  order  of  C.  K.,  Esq.,  justice  of  the  peace. 

Herein  fail  not,  under  the  penalty  of  the  law. 

NOTE. — California,  C.  C.  j:*.,  sec.  230.  In  all  states  the  form  of  notice 
Csummons)  to  a  person  to  appear  and  serve  as  a  juror  is  substantially 
the     same. 


No.  1 190. — Memorandum — Costs  and  Disbursements. 
[Title  of  Court  and  Cause.] 

DISBURSEMENTS. 

Constable's  fees,  serving  process   $  2  00 

Justice's   fees    5  00 

Juror's  fees,  one  day   24  00 

Witnesses'  fees,  as  foUozvs; 

J.  S.,  one  day 2  00 

R.  J.,  one  day   2  00 

J.  R.,  one  day   2  00 

Total   $3700 

NOTE. — It  is  nnncccpsary  to  file  a  bill  of  costs  in  proceedings  in  a 
juftiee's  court.  When  lawyers  appear  in  these  courts  they  sometimes 
file  them.  It  is  good  practice  to  do  so.  The  justice  is  furnished  with 
written  memoranda  of  the  prrvailing  party's  disbursements  Tn  the 
superior  courts  it  is  usually  necessary  to  file  and  verify  a  cost  bill: 
See  Superior  Courts. 


Justice's  Court.  705 


No.   iigi. — Notice  to  Parties — Time  and  Place  of  Trial. 

In  the  Justice's  Court  of  First  Tozvnship  in  the  City  of  Sacra- 
mento, State  of  California. 

M.  P.     ) 

To  P.  M.,  Plaintiff,  and  to  M.  P.,  ]>cfendant: 

You  and  each  of  you  will  please  take  notice  that  the  under- 
signed justice  of  the  peace,  before  whom  the  above-entitled  cause 
is  pending-,  has  set  for  hearing  the  demurrer  of  M.  P.,  defendant, 
filed  in  said  cause  [or  has  set  the  said  cause  for  trial,  as  the  case 
may  he],  before  me  at  my  office  in  said  township  [or  city,  or  city 
and  county],  at  ten  o'clock  A.  M.,  on  the  i8th  day  of  June,  igo'J. 

Dated  this  "jth  day  of  June,  190J. 

A.  B., 
Justice  of  the  Peace. 

NOTE.— California,  C.  C.  P.,  sec.  850. 


No.  1 192. — Notice — Case  Transferred. 
[Title  of  Court  and  Cause.] 

You  will  please  take  notice,  that  the  above-entitled  case  was, 
on  the  first  day  of  April,  ipo6,  by  S.  C,  Esq.,  justice  of  the  peace 
of  B.  Township,  county  of  C,  transferred  to  my  court  for  trial ; 
and  you  will  please  take  notice  that  the  undersigned  justice  of 
the  peace,  before  whom  the  above-entitled  action  is  pending,  has 
set  said  cause  for  trial,  before  himself  at  his  office  in  township 
H.,  in  the  town  of  S.,  in  said  coimty,  on  Monday,  April  6,  igo6, 
at  the  hour  of  10  o'clock  A.  M. 

J.  P. 


No.  1193. — Notice  to  Attorney — Time  and  Place  of  TriaL 
[Title  of  Court  and  Cause.] 

To  A.  B.,  Attorney  for  Plaintiff,  or  to  C.  D.,  Attorney  for  De- 
Please  take  notice  [the  same  as  in  No.  1192,  and  conclude  as 
follows]  :  Has  set  the  said  action  for  trial  at  my  office  in  said 
township  at  10  o'clock  A.  M.  on  the  iSth  day  of  June,  ipo6. 

NOTE. — California,  C.  C.  P.,  se*.  850. 

New  Forms — 15 


7o6  New  Book  of  Forms. 

No.    1 194. — Notice — AppeaL 

[Title  of  Court  and  Cause.] 

You  will  please  take  notice,  that  the  defendant  in  the  above- 
entitled  action  hereby  appeals  to  the  superior  court  of  the  county 
of  Sacramento,  froni  the  judgment  therein  made  and  entered  in 
the  said  justice's  court,  on  the  first  day  of  August,  1906,  in  favor 
of  said  plaintiff  and  against  said  defendant,  and  from  the  whole 
thereof.  This  appeal  ^is  take  on  questions  of  both  law  and  fact; 
or  [This  appeal  is  taken  on  questions  of  law;  or  this  appeal  is 
taken  from  that  part  of  the  judgment  awarding  defendant  costs]. 
To  the  Justice  of  said  Justice's  Court,  and  /.  N.,  Attorney  for 
Respondent : 

Service  of  a  copy  of  the  within  notice  of  appeal  is  hereby  ad- 
mitted, after  filing,  this  second  day  of  August,  ipo6. 

XOTE. — In  California  a  party  dissatisfied  with  the  judgment  of  a 
police  or  iustice's  court  may  appeal  to  the  superior  court.  The  appeal 
is  taken  by  filing  a  notice  of  appeal  and  serving  a  copy  on  the  other 
party.  The  notice  must  state  whether  the  appeal  is  from  the  whole 
or  part  of  the  judgment,  and  if  from  a  part,  stating  what  part^,  and 
whether  taken  on  questions  of  law  or  fact,  or  both:  C.  C.  P.,  sec  974, 

No.   1 195. — Notice — Officer,  to — Laborer's  Claim, 
[Title  of  Court  and  Cause.] 
To  H.  W..  Esq.  [SherifiF  or  Constable]  : 

You  will  please  take  notice,  that  within  sixty  days  next  pre- 
ceding the  date  of  the  levy  by  you  of  the  writ  of  attachment 
against  the  property  of  said  defendant  in  this  action,  /  rendered 
labor  as  a  miner  for  said  defendant,  and  there  is  due  me  from 
him  for  said  labor  the  sum  of  one  hundred  dollars;  and  you  are 
hereby  directed  to  withhold  said  amount  from  the  proceeds  of 
said  property  attached,  and  to  pay  the  same  to  me  on  said  labor 
account. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  1204-1207. 

No.  1 196. Notice  to  Creditor  or  Defendant — Laborer's  Claim. 

[Title  of  Court  and  Cause.] 

To  W.  S..  Defendant  [or  to  the  Plaintiff  Creditor]  ; 

You  will  please  take  notice,  that  /.  W.  has  presented_  a  claim, 
imder  oath,  for  one  hundred  dollars,  ivliich  he  claims  is  due  to 
him  from  the  defendant  herein  for  labor  as  a  miner,  within  sixty 
days  next  preceding  the  levy  of  the  attachment  writ  herein. 

(All  courts.) 

NOTK— California,  C.  C.  P.,  sees.  1204-1207. 


Justice's  Court.  707 


No.   1 197. — Notice  to  Officer — Laborer's  Claim  Disputed  by 

Creditor. 

[Title  of  Court  and  Cause.] 

To  //.  W.   [Sheriff  or  Constable]: 

You  will  please  take  notice,  that  I  dispute  the  entire  claim 
made  by  /.  IV.,  for  one  hundred  dollars,  for  labor  claimed  to 
have  been  performed  by  him  for  the  defendant  as  a  miner,  in 
this  action,  within  sixty  days  next  precedinj^  the  date  of  the  levy 
by  you  of  the  writ  of  attachment  herein.  No  part  of  said  claim 
is  justly  due  from  the  defendant  to  the  claimant. 

(AH  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  1204-1207. 


No.   1 198. — Notice  to  Officer — Laborer's  Claim   Disputed  by 

Defendant. 

[Title  of  Court  and  Cause.] 

To  H.   W.   [Sheriff  or  Constable]: 

You  will  please  take  notice,  that  T  dispute  the  entire  claim 
made  by  /.  W.,  for  one  hundred  dollars,  for  labor  claimed  to  have 
been  performed  by  him  for  me  ay  o  miner;  you  are  notified  that 
T  am  not  indebted  to  him  to  the  value  of  an\-thing  on  account  of 
labor  performed  within  sixty  days  next  preceding  the  date  of 
the  levy  by  you  of  the  writ  of  attachment  herein.  No  part  of 
said  claim  is  justly  due  from  me  to  said  claimant 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  1204-1207. 


No.  1 199. — Notice  to  Claimant — Claim  is  Disputed. 
[Title  of  Court  and  Cause.] 

To  /.  W. : 

You  are  hereby  noticed,  that  the  defendant  [or  plaintiff]  here- 
in disputes  the  validity  of  your  claim  for  one  hundred  dollars 
notice  of  which  you  have  heretofore  served  me  with ;  and  un- 
less you  commence  action  to  test  the  validity  of  your  claim,  and 
prosecute  the  same  with  reasonable  diligence,  within  ten  davs 
from  the  date  hereof,  it  will  he  barred  as  a  preferred  claim  un- 
der the  writ  of  attachment  [or  execution]   herein. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  1204-1207. 


jroS  New  Book  of  Forms. 

No.   1200. — Notice  to  PlaintifF — Arrest 

[Title  of  Court  and  Cause.] 

You  will  please  take  notice,  that  I  have,  in  obedience  to  the 
order  indorsed  on  the  summons  in  this  action,  arrested  the  de- 
fendant, and  he  is  now  in  my  custody. 

Indorsed :  Service  of  the  within  notice  admitted  this  third  day 
of  July,  1006. 

[Or  by  the  plaintiff,  if  he  has  not  appeared  by  attorney.] 

(All  courts.) 

NOTK. — California,  C.  C.  P.,  sec  865.  The  officer  mnst,  in  addition 
to  the  above  notice,  indorse  on  the  summons,  and  subscribe  a  certificate 
stating  the  time  of  serving  the  summons,  the  time  of  the  arrest,  and 
the  time  of  his  giving  notice  to  the  plaintiff. 


No.   I20I. — Notice    to    PlaintifF — Substitution    of    Party    De- 
fendant. 

[Title  of  Court  and  Cause.] 

You  will  please  take  notice,  that  defendant  will,  on  the  third 
day  of  April,  A.  D.  ipo6,  at  the  office  of  E.  R.,  Esq.,  justice  of 
the  peace,  at  the  town  of  C,  county  of  M.,  at  the  hour  of  ten 
o'clock  A.  M.  of  that  day,  apply  to  said  justice  of  the  peace  for 
an  order  substitutinpf  H.  AL  as  defendant  in  this  action,  in  place 
of  defendant,  and  discharging  said  defendant  from  liability  in 
said  action. 

Said  motion  will  be  based  on  the  pleadings  herein,  and  the  affi- 
davit of  defendant,  a  copy  of  which  is  served  herewith,  and  will 
be  made  on  the  ground  that  defendant  has  no  interest  in  the  re- 
sult of  said  action,  and  that  said  H.  N.  is  the  real  party  in  interest 
therein. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  385-387. 


No.  1202. — Notice,  Motion  of — Set  Aside  Default. 

[Title  of  Court  and  Cause.] 

Ycu  will  please  take  notice,  that  upon  affidavit,  a  copy  of  which 
is  herewith  served,  T  will  move  said  court  at  its  office  in  the  town 
of  Loyalton,  in  Valley  township,  county  of  Sierra,  on  the  sez>enth 
(lay  of  July,  ipoy,  at  the  hour  of  10  o'clock  A.  M.  of  said  day, 
or  as  soon  thereafter  as  counsel  can  be  heard  [or  as  soon  there- 
after as  the  defendant  can  be  heard]  ;  that  the  judgment  entered 
by  default  against  the  said  defendant,  and  all  subsequent  pro- 
ceedings thereon,  be  set  aside,  upon  the  ground  that  the  sunimons*^ 


Justicf/s  Court.  709 

herein  7vas  not  personally  scmed,  and  defendant's  time  for  an- 
swerinc^  had  not  elapsed  when  said  jud.q^ment  was  entered  [or 
any  other  ground  within  the  statute].  The  said  motion  will  be 
based  on  the  affidavit  of  the  defendant  herein. 

NOTE.— California,  C.  C.  P.,  sec.  859. 


No.  1203. — Notice,  Decision  of. 

[Title  of  Court  and  Cause.] 

You  will  please  take  notice,  that  the  defendant's  demurrer  to 
the  complaint  herein  has  been  sustained  and  you  are  given  two 
days  in  which  to  amend. 

[On  the  back  of  all  notices  is  usually  indorsed:  "Service  of 
the  within  admitted  this  tliird  day  of  January,  1906."] 

(All  courts.) 

NOTE.— Cnlifnmia.  C.  C.  "?..  src.  1014.  This  mnv  not  bo  strictlv 
apr>lifiblp  to  .insticos'  courts  hut  the  writer  thinks  it  ought  to  be 
tinhrld  in  the  spirit  of  Code  of  Civil  Proeednre.  section  R.iO.  If  not, 
thf^n  why  reqnire  notice  of  the  day  set  for  trial?  Knowledge  of  the 
decision  may  be  as  valuable  as  the  other  notice. 


No.  1204. — Notice — Defendant  Excepts  to  Sufficiency  of  Sure- 
ties. 

[Title  of  Court  and  Cause.] 
E.  J.,  Esq..  Constable: 

You  will  please  take  rnt'ce  that  the  defendant  in  this  action 
hereby  excepts  to  the  sufficiency  of  the  sureties  upon  plaintiff's 
undertaking'  filed  herein. 

(All  courts.) 

NOTE. — California,  C.  C.  P.,  Attachment,  sec.  867.  Attachment  on 
Vessels,  sec  821.     On  Appeal  to  Superior  Court,  sec  978. 


No.  1205. — Notice  to  Defendant — Kis  Sureties  Must  Justify. 
[Tit^e  of  Court  and  Cause.] 

You  v^nll  please  take  notice,  that  the  defendant's  sureties  on 
his  undertaking  herein,  on  release  from  arrest  [or  in  other  cases] 
will  be  required  to  justify. 

(All  courts.) 

NOTE. — California,  C.  C.  P.,  sec  978.  Attachment,  sees.  55-i,  555, 
On  Appeal,  sees.  978-992. 


710  New  Book  of  Forms. 


No.    1206. — Notice     to     Plaintiff — Justification — Sureties. 
[Title  of  Court  and  Cause.] 

You  will  please  take  notice,  that  defendant's  sureties  on  his 
undertaking^,  given  on  appeal  herein,  [or  in  any  other  matter], 
will  justify  before  A.  B.  C,  Esq.,  the  justice  who  issued  the  said 
order  of  arrest,  at  his  office  in  the  town  of  DownievUle,  on  Mon- 
day, August  2,  1906,  at  2  o'clock  P.  M. 

(All  courts.) 

NOTE.— California,   C.   C.  P.,   sec.   978. 


No.  1207. — Noticfc — Application  for  Discharge  from  Imprison- 
ment. 

[Title  of  Court  and  Cause.] 

You  will  please  take  notice,  that  on  Friday,  the  tenth  day  of 
August,  A.  D.  igo6,  at  the  hour  of  ten  o'clock,  A.  M.,  or  as  soon 
thereafter  as  the  matter  can  be  heard,  I  will  apply  to  the  Honor- 
able /.  H.,  judge  of  the  superior  court  of  the  city  and  county  of 
San  Francisco,  at  the  courtroom  of  his  said  court  in  the  New 
City  Hall,  in  said  city  and  county,  for  an  order  to  be  discharged 
from  imprisonment  in  the  county  jail  of  said  city  and  county, 
where  I  am  confined  as  a  prisoner  under  civil  process,  issued  out 
of  the  justice's  court  of  said  city  and  county,  in  an  action  in  said 
justice's  court  entitled  A.  B.  v.  E.  F. 

Dated  and  signed  by  the  prisoner,  and  addressed  to  and  served 
on  either  the  plaintiff  in  the  justice's  court,  or  his  agent,  or  his 
attorney  of  record. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  1143-1153. 


No.  1208. — Notice  to  Plaintiff — ^Advci^e  Claim. 
[Title  of  Court  and  Cause.] 

You  will  please  take  notice  that  defendant  will,  on  the  jd  day 
of  April,  A.  D.  ipoy,  at  the  office  of  E.  R.,  Esq.,  justice  of  the 
peace  at  the  town  of  C,  county  of  M.,  at  the  hour  of  ten  o'clock 
A.  M.  of  that  day,  apply  to  said  justice  of  the  peace  for  an  order 
substituting  //.  A'',  as  defendant  in  this  action,  in  place  of  de- 
fendant, and  discharging  said  defendant  from  liability  in  said 
action. 

Said  motion  will  be  based  on  the  pleadings  herein  and  the 
affidavit  of  defendant,  a  copy  of  which  vs  served  herewith,  and 


Justice's  Court.  711 

will  be  made  on  the  ground  that  defendant  has  no  interest  in  the 
result  of  said  action,  and  that  said  H.  N.  is  the  real  party  in  in- 
terest therein, 

[  Indorsed :  Service  of  the  within  and  of  a  copy  of  the  affidavit 
of  /.  N.  admitted  this  26th  day  of  March,  ipo/.] 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec.  386. 


No.  1209. — Notice  to  Occupant — Real  Eistate. 

[Title  of  Court  and  Cause.] 

Notice  to  Whom  It  May  Concern  : 

By  virtue  of  a  writ  of  execution  of  which  the  annexed  is  a 
copy,  I  have  duly  levied  on  the  hereinafter  described  real  prop- 
erty, and  all  the  right,  title,  and  interest  therein  and  thereto,  be- 
longing to  A.  B.  C,  the  therein  named  defendant,  or  to  which  he 
may  be  entitled  to,  situate,  lying,  and  being  in  the  county  of  Ala- 
meda, state  of  California,  standing  of  record  in  the  office  of  the 
county  recorder  in  and  for  said  county  in  the  name  of  A.  B.  C. 
[or  in  the  name  of  E.  F.  C,  etc.],  and  bounded  and  described 
as  follows,  viz.   [description]. 

(All  courts.) 

NOTE. — This  notice  is  sometimes  served  when  property  is  standing 
of  record  in  the  name  of  F.  A.,  but  really  in  trust  for  A.  B.  C,  a  judg- 
ment debtor.  It  is  not  required  by  law,  but  the  officer  holding  the 
writ  will,  at  the  request  of  plaintiff,  serve  the  writ  upon  the  occupant, 
and  sell  the  property  under  the  writ.  When  he  receives  the  deed,  ac- 
tion is  brought  to  eject  the  occupant,  and  if  it  can  be  established 
that  the  property  was  held  in  trust  by  F.  A.  for  A.  B.  G^  A-  B.  C. 'a 
title  has  vested  in  the  purchaser. 


No,   12 10. — Order — Arrest  Indorsed  on  Summons. 

[To  be  indorsed  on  the  summons,  if  the  defendant  is  subject 
to  arrest  in  the  action.] 

State  of  California, 
County  of  Napa, — ss. 

The  People  of  the  State  of  California,  to  the  Sheriff  or  any  Con- 
stable of  the  County  of  Napa: 

You  are  hereby  commanded  to  arrest  the  within  named  de- 
fendant, /.  C.  W.,  and  bring  him  before  me  forthwith,  to  answer 
the  plaintiff's  complaint  in  this  action. 

Given  under  my  hand,  this  third  day  of  June,  ipo6. 


712  New  Book  of  Forms. 

NOTE. — The  summons  is  directed  to  the  defendant,  and  si^ed  by 
the  justice,  and  contains:  1.  The  title  of  the  court,  name  of  the  county, 
and  city  or  townsmp  in  which  the  action  is  commenced,  and  the  names 
of  the  "parties;  2.  A  direction  that  the  defendant  appear  and  answer 
before  the  justice,  at  his  office,  at  a  time  stated,  as  specified  in  section 
845,  Code  of  Civil  Procedure;  3.  A  notice  that  unless  defendant  so 
appear  and  answer,  the  plaintiff  will  take  judgment  for  any  money  or 
damages  demanded  in  the  complaint  or  arising  upon  contract,  or  will 
apply  to  the  court  for  the  relief  demanded  in  the  complaint.  If  the 
plaintiff  appears  by  attorney,  the  name  of  the  attorney  must  be  in- 
dorsed upon  the  summons:  Cal.  C.  C.  P.,  sec.  844. 

No.  121 1. — Order — Commitment  on. 
[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California,  to  the  Sheriff  of  the 
County  of  Tehama: 
An  order  having  been  this  day  made  by  me.  that  /.  D.  be  held 
to  answer  upon  a  charge  of  [state  briefly  the  nature  of  the  of- 
fense] committed  in  said  township  and  county,  on  or  about  the 
£fth  day  of  August,  1905,  you,  the  said  sheriff,  are  commanded 
to  receive  him,  the  said  /.  D.,  into  your  custody,  and  detain  him 
until  he  is  legally  discharged.  And  I  hereby  order  tliat  the  said 
/.  D.  be  admitted  to  bail  in  the  sum  of  $500. 

NOTE.— Cal.,  Pen.  C,  sec.  877. 

No.    1212. — Order,   Inspection   for. 

[Title  of  Court  and  Cause.] 

To  A.  L.  P.,  Defendant   [or  Plaintiff]  : 

You  will  forthwith  [or  at  a  time  stated]  exhibit  the  original 
account  set  up  in  your  answer  to  the  plaintiff,  and  furnish  him 
with  a  copy  of  the  same.  [7/  this  order  is  not  obeyed,  the  said 
account  cannot  be  given  in  evidence.] 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  see.  1000. 

No.   12 13. — Order — Intervention   Allowed. 

[Title  of  Court  and  Cause.] 

The  complaint  of  P.  K.  N.  having  been  presented  to  me,  and 
leave  asked  to  file  the  same,  as  his  complaint  of  intervention 
herein,  and  it  appearing  that  good  cause  exists  therefor,  it  is 
ordered  that  leave  be  granted  to  file  the  same,  and  that  said 
P.  K.  N.  be  permitted  to  intervene  in  said  action, 

(All  courts.) 

NOTE.— California    C    0.  P,   sec.  387. 


Justice's  Court.  713 


No.  12 14. — Order — Examination  of  Party. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California,  to  G.  H.  McC,  Greeting : 

Whereas,  it  has  been  alleged  and  duly  made  to  appear  to  the 
undersigned,  one  of  the  justices  of  the  peace  of  said  township, 
by  the  affidavit  of  plaintiff,  that  an  execution  has  been  duly  is- 
sued out  of  this  court  against  property  of  yours,  the  said  de- 
fendant in  the  above-entitled  action,  and  is  Ftill  in  force  and  re- 
mains unsatisfied ;  and  that  you  have  in  your  possession  or  under 
your  control  certain  debts,  moneys,  effects,  credits,  and  other 
property,  which  you  unjustly  refuse  to  apply  toward  the  satis- 
faction of  said  judgment. 

You  are  therefore  commanded  to  be  and  appear  before  me  (or 
before  J.  B.,  Esq.,  who  is  appointed  referee  for  the  ptirpose  of 
said  examination) ,  at  my  office,  in  said  Second  Township,  in 
said  Nci'ada  county,  on  the  tenth  day  of  September,  igoy,  at 
tzvclve  o'clock  M.,  then  and  tliere  to  be  examined  on  oath,  con- 
cerning the  same. 

(All  courts.) 

NOTE.— California,  C.  a  P.,  sees.  714,  721. 


No.  1215. — Order — Examination — Debtor  of  Defendant. 
[Title  of  Court  and  Cause.] 
The  People  of  the  State  of  California,  to  E.  P,.  Greeting: 

Whereas,  it  has  been  alleged  and  made  to  appear  to  the  under- 
signed, one  of  the  justices  of  the  peace  of  said  township,  by  the 
affidavit  of  plaintiff,  that  an  execution  has  been  duly  issued  out 
of  this  court  against  the  property  of  the  defendant  in  the  above- 
entitled  action,  and  is  still  in  force,  and  that  you  have  in  your 
possession  or  under  your  control  certain  debts,  moneys,  effects, 
credits,  and  other  property,  owing  to  or  belonging  to  the  said 
defendant. 

You  are  therefore  commanded  to  be  and  appear  before  me  (or 
before  J.  B.,  Esq.,  zvho  is  appointed  referee  for  the  purpose  of 
said  examination),  at  my  office,  in  said  township,  in  said  county, 
on  the  third  day  of  August,  1907,  at  tzvo  o'clock  P.  M.,  then  and 
there  to  be  examined  on  oath  concerning  the  same.  And  you  are 
further  commanded  not  to  pay,  transfer,  return  or  otherwise  part 
with  or  dispose  of  any  such  debts,  moneys,  effects,  credits,  or 
other  property,  until  duly  released  according  to  law. 

Given  under  my  hand,  etc 


714  New  Book  of  Forms. 


I  hereby  certify  that  1  have  served  the  within  order  by  deliv- 
ing-  a  true  copy  thereof  to  E.  P.,  the  person  to  whom  the  same 
is  directed  personally,  this  second  day  of  August,  ipo^,  at  Bloom- 
Held  township,  in  tlie  county  of  Nevada. 

Fees,  $1.50. 

(All  courts.) 

NOTK— California,    C.   C.   P.,   sec.   717. 

No.   12 16. — Order — Arrest  by  Sureties. 

[Title  of  Court  and  Cause.] 

You  will  please  take  notice,  that  the  undersigned,  the  sureties 
on  the  bail  of  defendant  on  his  release  from  arrest,  as  appears 
from  the  undertaking,  of  which  the  within  is  a  certified  copy, 
command  you  to  forthwith  arrest  the  within  named  defendant 
and  detain' him  in  your  custody  until  he  is  discharged  by  law. 

(All  courts.) 

NOTE. — California,  C.  C.  P.,  sec.  489.  The  bail  may  at  any  time  or 
rlace  before  their  discharge  arrest  the  defendant,  or  they  may,  by 
written  order  indorsed  on  a  certified  copy  of  the  undertaking,  order 
tho  sheriff  to   make  the  arrest. 

No.  12 17. — Order,  Substitution  of. 

[Title  of  Court  and  Cause.] 

On  reading  and  filing  the  affidavit  of  /.  N.,  filed  herein,  and 
sufficient  cause  existing  therefor,  it  is  ordered  that  defendant 
herein,  /.  N.,  be  discharged  as  defendant  and  from  all  liability 
herein'  and  that  H.  N.  be  substituted  in  his  place,  upon  said  /.  N. 
delivering  the  stallion  "H.  L.  B."  to  W.  F.,  the  sheriff  of  M. 
county. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  385,  386. 

No.  1218. — Order,  Docket. 

[Title  of  Court  and  Cause.] 

W.  P.,  the  sheriff  of  the  county  of  M.,  having  filed  with  me 
a  receipt  acknowledging  that  he  has  received  from  /.  N.  the  stal- 
lion "H.  L.  B.,"  in  controversy  in  this  action,  it  is  ordered  that 
J.  N.  be  and  he  is  discharged  from  this  action  as  a  defendant 
therein,  and  from  all  liability  therein,  and  that  H.  N.  be  and  he 
is  hereby  substituted  defendant  in  place  of  said  /.  N. 

KOTE. — California,  C.  C.  P.,  sec.  386. 


Justice's  Court. 


/^o 


No.   12  ig — Order,  Intervention  Allowing — Docket, 

[Title  of  Court  and  Cause.] 

The  complaint  of  P.  K.  N.  having  been  presented  to  me,  and 
leave  asked  to  file  the  same  as  his  complaint  of  intervention 
herein,  and  it  appearing  that  good  cause  exists  therefor,  it  is 
ordered  that  leave  be  granted  to  file  the  same,  and  that  said  P.  K. 
N.  be  permitted  to  intervene  in  said  action. 

NOTE.— California,  C.  C.  P.,  see.  387. 

No.  1220. — Order — Opening  Default. 

[Title  of  Court  and  Cause.] 

The  defendant  having  shown  good  cause  therefor,  it  is  ordered 
that  his  default  in  not  answering  the  complaint  herein  be,  and 
the  same  is,  hereby  set  aside,  and  the  judgment  against  him  by 
default  vacated,  on  his  payment  into  court  within  one  hour  of 
ten  dollars  costs  for  the  iDencfit  of  the  plaintiff.  It  is  further  or- 
dered that  the  defendant  may  have  twenty-four  hours  from  I2 
o'clock  M.  of  this  day  to  answer  the  complaint  herein. 

NOTE.— California,  C.  C.  P.,  sec.  859. 

No.  122 1. — Order  Bringing  in  Paiiy — Docket  Entry. 

[Title  of  Court  and  Cause.] 

On  reading  and  filing  the  application  of  /.  A.  to  be  made  a 
party  plaintiff  herein,  and  it  appearing  to  my  satisfaction  that 
good  cause  exists  therefor,  it  is  ordered  that  the  complaint,  and 
summons  be  amended  by  adding  his  name  as  a  party  plaintiff. 

NOTE.— California,  C.  C.  P.,  389. 


No.  1222 — Order — Release  Levy, 
[Title  of  Court  and  Cause.] 

The  sheriff  of  the  city  and  county  of  San  Francisco  is  hereby 
directed  to  release  from  levy  all  the  property  seized  by  him  by 
virtue  of  the  writ  of  execution  issued  in  the  above-entitled  suit. 

(All  courts.) 

NOTE. — Such  orders  are  obeyed  by  officers  upon  the  principle  that 
the  person  who  gives  an  order  may  revoke  it  in  the  absence  of  Intor- 
vuiing  rights  of  others  of  which  the  officer  has  notice. 


7i6  New  Book  of  Forms. 


No.  1223. — Order,  Execution  Recalling. 

[Title  of  Court  and  Cause.] 

The  defendant  having  paid  into  court  the  sum  of  $10  costs  as 
ordered  herein,  and  the  judgment  by  default  herein  being  va- 
cated, the  writ  of  execution  issued  herein  on  the  3d  day  of  May, 
igo6,  is  hereby  vacated  and  ordered  to  be  forthwith  returned. 

NOTE, — See  note  to  preceding  form. 


No.    1224. — Return    of    Search-warrant — Inventory    Attached 
(or  Written  on  the  Back). 

State  of  California, 
County  of  Sacramento, — ss. 

I,  the  undersigned,  police  oificer,  make  this,  my  return,  to  the 
within  search-warrant.  I  received  said  warrant  on  the  jd  day 
of  June,  igo6,  and  under  its  authority  I,  on  the  day  of  its  date, 
diligently  searched  the  premises  described  as  follows,  to  wit  [de- 
scription], and  I  there  discovered  and  seized  all  the  property 
described  in  the  inventory  accompanying  this  return. 

Inventory  [which  may,  if  not  long,  he  indorsed  on  the  back  of 
the  ivarrant]. 

[Description  of  property  seized.] 

City  and  County  of  San  Francisco — ss. 

I,  P.  P.,  the  officer  by  whom  this  warrant  was  executed,  here- 
by state  that  the  above  inventory  contains  a  true  and  detailed 
account  of  all  the  property  taken  by  me  on  the  warrant,  and  that 
said  inventory  was  made  publicly  in  the  presence  of  the  person, 
A.  B.,  from  whose  possession  it  was  taken  by  me,  and  in  the 
presence  of  B.  F.,  the  applicant  for  the  warrant  [if  the  said  A.  B. 
and  B.  F.  were  present]. 

Verified  as  follows:  "I  do  solemnly  swear  that  what  is  stated 
in  this  affidavit  is  true." 

NOTE.— California,  Pen.  C,  sees.   1523,  1538. 


No.  1225. — Return  of  Summons — County,  etc. 
[Title  of  Court  and  Cause.] 

If  the  defendant  is  a  county,  city  or  town,  say :  "Personally 
served  the  same  on  the  8th  day  of  November,  i()o6,  on  tlie  de- 


Justice's  Court.  717 

fendant,  the  county  of  Santa  Clara,  by  delivering  to  G.  P.  C,  the 
president    [or   chairman]    of  the   board   of    supervisors   of   said 
county,  personally,"  etc. 
(All  courts.) 

NOTE.— California,   C.   C.   x',  sec,   415. 


No.   1226. — Return — Summons  vs. — Corporation, 
[Title  of  Court  and  Cause.] 

[If  the  defendant  is  a  corporation,  the  return  or  affidavit 
should  state:]  And  personally  served  the  same  on  the  7//1  day  of 
November,  igoj,  on  the  G.  IV.  and  S.  M.  D.  Company,  defend- 
ant named  in  the  summons,  by  delivering  to  /.  T.  D.,  the  presi- 
dent [or  other  Iiead  of  the  corporation,  secretary,  cashier,  or 
managing  agent  thereof],  personally,  etc. 

(All  courts.) 

NOTE.— California,   G.   C.   P.,   B€«.   415. 


No,  1227. — Return — Service  of  Notice — Case  Set  for  Trial  or 
Hearing  of  Demurrer. 

[Title  of  Court  and  Cause.] 

I  hereby  certify  that  I  served  the  attached  notice  of  time  and 
place  of  the  trial  [or  hearing  of  demurrer]  on  the  plaintiff,  A.  B. 
[or  defendant],  by  delivering  to  him  personally  at  C.  D.,  in  said 
county  and  township,  on  the  8th  day  of  June,  igo'j,  a  copy  of  said 
notice. 

NOTE. — See  affidavit  of  service,  or  certificate  of  service.  The  forms 
are  the  same  in  all  courts  except  aa  to  time. 


No.  1228, — Return — Summons — County  or  City,  etc 
[Title  of  Court  and  Cause.] 

[If  the  defendant  is  a  county,  city,  or  town,  say:]  Personally 
served  the  same  on  the  eighth  day  of  November,  iQoy,  on  the  de- 
fendant, the  county  of  Santa  Clara,  by  delivering  to  G.  P.  C, 
the  president  [or  chaimian]  of  the  board  of  supervisors  of  said 
county,  personally,  etc. 

(All  courts.) 

NOTE.— California,  C.  C  P.,  sec  415. 


7i8  New  Book  of  Forms. 

No.   T22g. — Return — Summons — On  Arrest, 

[Title  of  Court  and  Cause.] 

[After  stating  the  sennce  of  summons  and  copy  of  the  com- 
plaint add:]  And  at  the  same  time  and  place,  by  authority  of  the 
order  of  arrest  indorsed  on  said  summons,  I  arrested  the  said 
defendant,  and  he  is  now  in  my  custody ;  and  immediately  after 
said  arrest,  to  wit,  at  two  o'clock  P.  M.  of  the  same  day  I  per- 
sonally <^ave  notice  of  said  airest  to  the  plaintiff  herein. 

(All  courts.) 

NOTE.— California,  C.   C.  P.,  sec  415. 


No.  1230 — Return — Summons. 

[Title  of  Court  and  Cause.] 

I  hereby  certify  that  I  received  the  within  [or  annexed]  sum- 
mons on  the  sixth  day  of  October,  IQO/,  and  personally  served 
the  same  on  the  eighth  day  of  November,  ipoy,  on  A.  B.,  the  de- 
fendant, named  in  said  summons,  by  delivering  to  him,  person- 
ally, in  the  city  of  Sacramento,  county  of  Sacramento,  a  copy  of 
said  summons. 

(All  courts.) 

NOTK — California,  C.   C.  P.,  sec.  415. 


No.  1 23 1. — Return  of  Summons — Minor  Defendant. 
[Title  of  Court  and  Cause.] 

[If  the  defendant  is  a  minor,  the  af^davit  or  return  should 
state:]  Personally  served  the  same  on  the  8th  day  of  November, 
jgo6,  on  A.  B.  B.,  the  minor  defendant  named  in  the  summons, 
by  delivering  to  said  A.  B.  B.,  personally,  in  the  city  of,  etc.,  a 
copy  of  said  summons  attached  to  a  true  copy  of  the  complaint 
in  the  action.  And  at  the  same  time  and  place  I  personally 
served  the  said  summons  on  A.  B.  B.,  the  said  minor  defendant, 
by  personally  delivering  to  his  father,  C.  A.  B.  [or  mother,  or 
guardian,  or  if  there  be  none,  to  the  person  having  the  care 
or  control  of  the  defendant,  or  with  whom  he  resides,  or  in  whose 
service  he  is  employed],  in  the  said  city,  etc.,  a  copy  of  said 
summons,  attached  to  a  true  copy  of  the  complaint  in  the  action, 

(All  courts.) 

NOTE.— California,  C.   C.  P.,  see.  415. 


JusTici;'s  Court.  719 


No.  1232. — Return — GeneraL 
[Title  of  Court  and  Cause.] 

I  hereby  certify  that  I  have  this  twelfth  day  of  May,  igoj,  re- 
turned the  within  execution  satisfied. 
(All  courts.) 

NOTE.— California,  C.  C.  P.,  see.  415. 


No.   1233. — Return — Execution — No   Property   Found- 

[ Title  of  Court  and  Cause.] 

I  hereby  certify  that  I  received  the  annexed  execution  on  the 
third  day  of  August,  A.  D.  1907,  and,  after  due  and  diligent 
search  and  inquiry,  I  am  unable  to  find  any  property  belonging  to 
the  defendant  therein  named  in  said  county. 

(All  courts.) 

Note. — It  may  be  made  returnable  not  less  than  ten  nor  more  than 
sixty  days  after  its  receipt  by  the  oflSee:  Cal.  C.  C.  P.,  sec  683. 


f 


No.  1234- — Return — Execution  Satisfied. 

[Title  of  Court  and  Cause.] 

I  hereby  certify  that  I  received  the  annexed  execution  on  the 
n\nih  day  of  August,  ipoy,  and  by  virtue  thereof  recovered  from 
the  therein  named  judgment  debtor  the  sum  of  $3P7,  and  after 
deducting  my  fees  and  commission  of  $2y.^o,  I  applied  the  bal- 
ance of  $368.^0  in  satisfaction  of  said  execution,  as  will  more  fully 
appear  by  receipt  of  the  plaintiff  indorsed  thereon  and  made  a 
part  hereof,  and  I  hereby  return  the  said  execution  satisfied. 

(All  courts.) 

NOTE.— California,  C.  C,  P.,  sec.  6S3. 


No.  1235. — Return — Attachment  of  Personalty. 

[Title  of  Court  and  Cause.] 

Office  of  the  Sheriff, 

Of  the  City  and  County  of  San  Francisco, — ss. 

Py  virtue  of  the  annexed  writ,  I  duly  attached  all  moneys, 
g^oods,  credits,  effects,  debts  due  or  owing,  and  all  other  personnl 
property  belonging  to  the  defendants  therein  named,  or  to  cUhcr 


720  New  Book  of  Forms, 

of  them,  in  the  possession  or  under  the  control  of  /.  D.,  by  serv- 
ing upon  the  said  /.  D.  personally,  in  the  city  and  county  of  San 
Francisco,  on  the  sixteenth  day  of  August,  ipo§,  at  elcTcn  o'clock 
A.  M.,  a  copy  of  said  writ,  with  a  notice  in  writing,  that  such 
property  was  attached  in  pursuance  of  said  writ,  and  not  to  pay 
over  or  transfer  the  said  prop?rty  to  anyone  but  myself.  State- 
ment demanded. 

[Here  state  answer  of  person  served,  as,  "and  the  said  J.  D. 
gaz-e  me  a  written  a^knozvledgment  that  he  was  indebted  to  de- 
fetidant  herein  in  the  sum  of  one  thousatvd  doidars."] 

(All  courts.) 

NOTE. — California,  C.  C.  P.,  sec.  683. 


No.  1236. — Return — Attachment  of  Personalty. 

[Title  of  Court  and  Cause.] 

Office  of  the  Sheriff, 

Of  the  City  and  County  of  San  Francisco, — ss. 

By  virtue  of  the  annexed  writ,  I  duly  attached  all  moneys, 
goods,  credits,  effects,  debts  due  or  owing,  and  all  other  personal 
property  belonging  to  the  defendants  therein  named,  or  either  of 
them,  in  the  possession  or  under  the  control  of  the  parties  herein- 
after named,  by  serving  upon  each  of  them  respectively,  person- 
ally, in  the  city  and  county  of  San  Francisco,  at  the  times  set 
opposite  their  respective  names,  a  copy  of  said  writ,  with  a  notice 
in  writing  that  such  property  was  attached,  in  pursuance  of  said 
writ,  and  not  to  pay  over  or  transfer  the  said  property  to  anyone 
but  myself. 

Statements  demanded.     Answers  as  hereinafter  mentioned. 

NAMKS.  TIME  OE  SERVICE.  ANSWERS. 

J.  D.  August  18,  1905,        [Sere  state  answer  of  /.  Z?.]! 

(All  courts.) 
NOTE.— California,  C.  C,  P.,  sec.  683. 


No.  1237. — Return — Sale  of  Real  Estate. 

[Title  of  Court  and  Cause.] 

Office  of  the  Sheriff, 

Of  the  City  and  County  of  San  Francisco, — ss. 

I,  A.  B.  C,  sheriff  of  the  city  and  county  of  San  Francisco, 
do  hereby  certify: 

That,  by  virtue  and  in  prrsnance  of  the  annexed  order  of  sale, 
I  advertised  tlie  property  described  in  said  order,  and  as  follows. 


Justice's  Court. 


721 


to  wit  [description],  to  be  sold  by  me  in  front  of  the  City  Hall, 
in  the  city  of  San  Francisco,  on  the  first  day  of  April,  1^0^,  at 
twelve  o'clock,  noon ;  that  previous  to  said  sale  I  caused  due  and 
legal  notice  thereof  to  be  published  once  in  each  week  for  three 
weeks  successively,  immediately  before  said  saJe,  in  the  D.  E.  B., 
a  daily  newspaper  published  in  the  city  and  county  of  San  Fran- 
Cisco,  and  caused  said  notice  to  be  posted  in  three  of  the  most 
public  places  in  the  city  of  San  Francisco  for  the  same  period 
preceding  such  sale,  and  that  on  the  first  day  of  April,  jpo§,  the 
day  on  which  said  premises  were  so  advertised  to  be  sold,  as  afore- 
said, I  attended  at  the  time  and  place  fixed  for  said  sale,  and 
exposed  the  said  premises  for  sale  in  one  parcel,  at  public  auc- 
tion, according-  to  law,  to  the  highest  bidder  for  cash.  United 
States  gold  coin,  when  /.  D.,  being  the  highest  bidder  therefor, 
the  said  premises  were  struck  oft  by  me  to  the  said  /.  D.  for  the 
sum  of  one  thousand  dollars,  gold  coin,  of  the  United  States, 
which  was  the  whole  price  bid,  and  which  I  acknowledge  to  have 
received;  and  that  I  delivered  to  said  purchaser  a  certificate  of 
said  sale,  and  filed  a  duplicate  thereof  in  the  ofiice  of  the  county 
recorder  of  the  said  city  and  county. 
(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec.  683. 

No.   1238. — Return    of    Attachment  or    Execution — Levy    on 

Credits,  etc. 

[Title  of  Court  and  Cause.] 

By  virtue  of  the  annexed  writ,  I  duly  attached  all  moneys, 
goods,  credits,  effects,  debts  due  or  owing,  or  any  other  personal 
property  in  the  possession  or  under  the  control  of  the  parties 
hereinafter  named,  at  the  time  set  opposite  to  their  respective 
names,  belonging  to  the  defendants  named  in  said  writ,  or  to 
either  of  them,  by  delivering  to  and  leaving  with  each  of  said 
parties  hereinafter  named,  personally,  in  the  county  of  Sacra- 
mento, a  copy  of  said  writ,  with  a  notice  in  writing  that  such 
property  was  attached,  and  not  to  pay  over  or  transfer  the  same 
to  anyone  but  myself. 

Statement  demanded. 


Names  of  Parties  Served  as 
Aforesaid. 


W.  J.  E.  &  Co. 


Date  and  Tl  me  of  Serrice. 


AugxLst  p,  iQo6- 


Ans'wers. 


They  owe  defendant  one 
hundre^i     dollars     for 
work  and  labor  dur- 
ing JanxMTy,  igod- 


(All  courts.) 

New  Forms  — 16 


T22 


New  Book  of  Forms. 


XOTE. — Cal.  C.  C.  p.,  sec.  559.  If  the  writ  is  for  attachment,  the 
return  must  be  macie  twenty  days  after  its  receipt.  If  for  levy  under 
execution,  then  it  must  be' returned  within  the  life  of  the  execution, 
to  wit,  not  less  than  ten  nor  more  than  sixty  days  from  its  receipt  by 
the  ofiicer:  California,  C.  C.  P.,  sec.  683. 


No,     1239. — Return — Attachment,     or    Execution — Levy    on 
Shares  in  Corporation, 

[Title  of  Court  and  Cause.] 

By  virtue  of  the  annexed  writ  I  duly  attached  all  stock  or 
shares,  or  interest  in  stock  or  shares,  of  the  hereinafter  named 
corporations,  belonging  to  the  defendants  named  in  said  writ,  or 
to  either  of  them,  by  serving  upon  each  of  the  hereinafter  named 
parties,  personally,  in  the  city  of  Sacramento,  county  of  Sacra^ 
mento,  at  the  times  set  opposite  their  respective  names,  a  copy 
of  said  writ,  with  a  notice  in  writing,  notifying  each  of  said  cor- 
porations respectively-  that  such  stock  or  interest  of  said  defend- 
ants, or  either  of  them,  was  attached,  and  not  to  pay  over  or 
transfer  the  same  to  anyone  but  myself. 

Statement  demanded.  The  answers  were  as  set  opposite  the 
respective  names  of  said  corporations. 


Names  of  the   Mining  Com- 
panies, and  of  the  Parties 
Served  as  Aforesaid. 


Black  Prince. 


Time  of  Service. 


Augtist  g,  igo6- 


Answers. 


One    hundred    shares    stock 
standing    in    defendant's 
name  on  books  of  corpo- 
ration. 


(All   courts.) 
NOTE. — California,  C.  C.  P.,  sec.  559. 


No.  1240. — Stipulation  to  Transfer  Action. 
[Title  of  Court  and  Cause.] 

It  is  hereby  stipulated  that  this  case  may  be  transferred  to  J. 
S.,  Esq.,  justice  of  the  peace  of  D.,  B.  township,  S.  county,  for 
trial  upon  the  ground  that  the  title  to  real  property  is  involved 
in  it. 

NOTE. — California,  C.  C.  P.,  sees.  836-838.  Jurisdiction  to  transfer 
does  not  give  jurisdiction  to  the  court  to  which  it  is  trr-nsferred,  nor 
can  a  stipulation  give  jurisdiction  to  a  justice  of  the  peace  to  trans- 
fer. The  facts  must  appear  by  the  answer  in  the  case,  or  in  the  jus- 
tice's docket  sent  up  with  his  certificate. 


Justice's  Court.  ■j2i 


No.   1 241. — Stipulation  as  to  Facts. 

[Title  of  Court  and  Cause.] 

It  is  stipulated  between  the  parties  hereto  as  follows:  A.  B., 
the  plaintiff,  was  on  the  first  day  of  May,  Jpo/,  a  real  estate  agent. 
At  the  same  time  C.  D.,  the  defendant,  owned  a  tract  of  land  in 
said  county  and  township;  that  both  plaintiff  and  defendant  re- 
side in  said  township ;  that  on  said  day  it  was  verbally  agreed 
between  plaintiff  and  defendant  that  if  plaintiff  within  three 
months  would  find  a  purchaser  who  would  pay  ten  thousand  dol- 
lars for  said  land,  that  defendant,  on  demand,  would  pay  plain- 
tiff tivo  hundred  and  fifty  dollars;  that  on  the  third  day  of  June, 
igoj,  plaintiff  found  a  purchaser,  to  whom  defendant,  on  June  10, 
190J,  granted  said  land  for  ten  thousand  dollars ;  that  on  the  tenth 
day  of  said  month  of  June,  plaintiff  demanded  of  defendant  txvo 
hundred  and  fifty  dollars,  which  defendant  refused  to  pay,  and 
never  has  paid.  It  is  further  stinulated  that  this  controversy 
shall  be  and  the  same  is  hereby  submitted  for  judgment  without 
further  testimony. 

State  of  California, 
County  of  Lake. 

A.  B.  and  C.  D.,  being  each  duly  sworn,  say  each  for  himself 
and  not  one  for  the  other,  that  the  statements  contained  in  the 
foregoing  stipulation  are  true,  and  occurred  precisely,  as  therein 
stated ;  that  this  proceeding  is  instituted  in  good  faith  to  deter- 
mine the  rights  of  said  parties. 

NOTE.:— California,  C.  C.  P.,  sec.  3139.  Such  contracts  are  void 
under  the  Civil  Code  of  California,  unless  evidenced  by  written  f.ontraet; 
McCarthy  v.  Loupe,  62  CaL  299;  Schuder  v.  Farquharson,  11  P.  C  L. 
J.  24;  CsO.  G.  C,  sec  1624. 


No.  1242. — Subpoena. 

[Title  of  Court  and  Cause,] 

The  People  of  the  State  of  California  Send  Greeting  to  H  H  B 
and  W.  H.  K.: 
We  command  you  that  you  appear  and  attend  before  the  un- 
dersigned, one  of  the  justices  of  the  peace  of  said  township,  in 
said  Sacramento  county,  at  his  ofiice,  southeast  corner  of  Sixth 
and  A  streets,  Sacramento,  on  the  seventeenth  dav  of  May,  190J, 
at  one  o'clock  P.  M.,  then  and  there  to  testify  in  the  above-en- 
titled action,  now  pending  before  said  justice  on  the  part  of  tlic 


724  New  Book  oif  Forms. 

defendant;  and  for  a  failure  to  attend,  you  zvill  be  deemed  guilty 
of  a  contempt  of  court,  and  liable  to  pay  all  losses  and  damages 
sustained  thereby  by  the  parties  aggrieved,  and  forfeit  one  hun- 
dred dollars  in  addition  thereto. 
(All  courts.) 

NOTE. — K  the  snbpo€Ba  is  served  by  an  officer  the  iisnal  retnrn  is 
indorsed  on  it.  If  by  a  private  person,  then  his  affidavit  of  service 
is  indorsed. 

A  justice  of  the  peace  may  issue  a  subpoena  to  any  part  of  the  county. 
It  must  be  issued  without  a  blank  left  to  be  fiUed  by  another;  other- 
wise, it  is  void:  Cal  C.  a  P.,  sees.  919,  920. 

No.  1243. — Subpoena — CriminaL 
[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California,  to  S.  H.  and  A.  J.: 

You  are  commanded  to  appear  before  IV.  A.  H.,  a  justice  of 
the  peace  of  Hot  Springs  township,  in  the  county  of  Napa,  at  the 
office  of  said  justice,  in  said  township,  on  the  third  day  of  June, 
igoj,  at  ten  o'clock  A.  M.,  as  a  witness  in  a  criminal  action,  prose- 
cuted by  the  people  of  the  state  of  California,  against  /.  S.,  on 
the  part  of  the  people.  [If  documents  are  wanted  as  eindence, 
add,  and  you  are  required,  also,  to  bring  with  you  the  following — 
describing  intelligibly  the  books,  papers,  or  documents  required.'] 

INDORSEMENT   01^    SERVICE. 

I  hereby  certify  that  I  have  served  the  within  subpoena  by 
showing  the  within  original  to  the  within  named  S.  H.  and  A.  J. 
personally,  and  informing  each  one  of  them  of  the  contents 
thereof,  on  or  prior  to  the  third  day  of  June,  190J,  at  the  county 
of  Napa. 

j<[OTE. — A  magistrate  before  whom  a  complaint  is  made,  for  wit- 
nesses in  the  state,  may  subpcena  them:  Cal.  Pen.  C,  1326.  The  form 
of  subpoena  is  given  by  statute:  Id.,  sec.  1327. 


No.  1244. — Suminons, 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California  Send  Greeting  to  /.  B.,  De- 
fendant : 
You  are  hereby  directed  to  appear  before  me  at  my  office,  at 
Brown's  flat,  in  said  township,  and  answer  the  complaint  in  an 
action  entitled  as  above,  brought  against  you  in  the  justice's  court 
of  Sears  tozvnship,  county  of  Sierra,  state  of  California,  within 
iive  days  after  the  service  on  you  of  tliis  summons — if  served 


Justick's  Court.  725 

within  the  dty  and  county,  township  or  city  in  which  this  action 
is  brought ;  or,  if  served  out  of  said  township  or  city  but  in  this 
county,  within  ten  days,  or  within  twenty  days  if  served  else- 
where. 

And  yon  are  hereby  notified  that  unless  you  appear  and  answer 
as  above  required,  the  said  plaintiff  will  take  judgment  for  any 
money  or  damages  demanded  in  the  complaint,  as  arising  upon 
contract,  or  he  will  apply  to  the  court  for  the  relief  demanded  in 
the  complaint. 

Given  under  my  hand  this  ^d  day  of  June,  A.  D.  ipo/. 

NOTE.— California,  C.  O,  sees.  844,  845. 

No.  1245. — Summons,  Alias. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California  Send  Greeting  to  /.  B.,  De- 
fendant : 

You  are  hereby  directed  to  appear  before  me  at  my  office,  at 
Brozim's  Flat,  in  said  township,  and  answer  the  complaint  in  an 
action  entitled  as  above,  brought  against  you  in  the  justice's  court 
of  Scars  toivnship,  county  of  Butte,  state  of  California,  within 
five  days  after  the  service  on  you  of  this  alias  summons — if  served 
within  the  city  and  county,  township  or  city  in  which  this  action 
is  brought ;  or,  if  served  out  of  said  township  or  city  but  in  this 
county,  within  ten  days ;  or  within  twenty  days  if  served  else- 
where. The  original  summons  in  this  action  has  been  returned 
without  being  served. 

And  you  are  hereby  notified  that  unless  you  appear  and  answer 
as  above  required,  the  said  plaintiff  will  take  judgment  for  any 
money  or  damages  demanded  in  the  complaint,  as  arising  upon 
contract  or  he  will  apply  to  tlie  court  for  the  relief  demanded  in 
the  complaint. 

Given  under  my  hand,  this  ^d  day  of  June,  A.  D.  1907. 

NOTE.— California,  C.  C.  P.,  sees.  408,  844-849. 

No.  1246. — Summons — Order  of  Arrest  on. 
[To  be  indorsed  on  the  summons,  if  the  defendant  is  subject 
to  arrest  in  the  action.] 

State  of  California, 
County  of  Napa, — ss. 

The  People  of  the  State  of  California,  to  the  Sheriff  or  any  Con- 
stable of  the  County  of  Napa: 

You  are  hereby  commanded  to  arrest  the  within-named  defend- 
ant, /.  C.  JJ\,  and  bring  him  before  me  forthwith,  to  answer  the 
plaintiff's  complaint  in  this  action. 

NOTK — California,  C.  C.  P.,  sec.  845,  subd.  L 


726  New  Book  op  Forms. 


No.    1247. — Summons — Certificate   Accompanying. 

State  of  California, 
County  of  San  Mateo, — ss. 

I,  H.  ]V.,  clerk  of  the  county  of  San  Mateo,  hereby  certify  that 
C.  P.  11'.,  the  person  who  issued  and  whose  name  is  signed  to  the 
annexed  summons,  was  an  acting  justice  of  the  peace  for  Red- 
ivood  township,  in  said  county  of  San  Mateo,  at  the  date  of  said 
summons. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  afHxed 
the  seal  of  the  superior  court  of  the  said  county  of  San  Mateo, 
this  loth  day  of  June,  ipo6. 

NOTE. — This  form  is  used  when  a  summons  is  to  be  served  oat  of 
the  county  where  the  justice  resides:  CaL  d  G.  P.,  see.  849. 


No.    1248. — Undertaking — Attachment. 

[Title  of  Court  and  Cause.] 

Whereas,  the  above-named  plaintiffs  have  commenced,  or  are 
about  to  commence  an  action  in  the  justice's  court  of  the  ^rsi 
township,  in  the  county  of  Solano,  state  of  California,  against 
the  above-named  defendant,  upon  a  contract  for  the  direct  pay- 
ment of  money,  claiming  that  there  is  due  to  the  said  plaintiffs, 
from  the  said  defendant,  the  sum  of  two  hundred  dollars,  gold 
coin,  of  the  United  States,  besides  interest,  and  an  attachment 
against  the  property  of  the  said  defendant,  as  security  for  the 
satisfaction  of  any  judgment  that  may  be  recovered  therein,  has 
been  demanded  by  said  plaintiffs. 

Now,  therefore,  we,  the  undersigned,  residents  of  the  county 
of  Solano,  in  consideration  of  the  premises,  and  of  the  issuing 
of  said  attachment,  do  jointly  and  severally  undertake,  in  the  sum 
of  three  hundred  dollars,  gold  coin,  and  promise  to  the  effect  that 
if  the  said  defendant  recovers  judgment  in  said  action,  the  said 
plaintiffs  zvill  pay  all  costs  that  may  be  awarded  to  the  said  de- 
fendant, and  all  damages  zvhich  he  may  sustain  by  reason  of  the 
said  attachment,  not  exceeding  the  sum  of  three  lutndred  dollars, 
(All  courts.) 

NOTE. — California,  C.  C.  P.,  see.  867. 


No.   1249. — Undertaking — Release  of  Attachment. 

[Title  of  Court  and  Cause.] 

Whereas,  the  plaintiff  in  the  above-entitled  cause    has    com- 
menced an  action  in  the  aforesaid  court  against  the  above-named 


Justice's  Court.  727; 

defendants  for  the  recovery  of  two  hundred  and  fifty  (250)  dol- 
lars, gold  coin  of  the  United  States. 

And  whereas,  an  attachment  has  been  issued,  directed  to  the 
constable  of  Pine  Grove  township,  of  the  county  of  Monterey, 
and  placed  in  his  hands  for  execution,  whereby  he  is  commanded 
to  attach  and  safely  keep  all  the  property  of  the  said  defendants 
within  his  county  not  exempt  from  execution,  or  so  much  therc-of 
ai  may  be  sufficient  to  satisfy  the  plaintiff's  demand  therein  stated, 
in  conformity  with  the  complaint,  at  two  hundred  and  fifty  dol- 
lars, gold  coin  of  the  United  States,  unless  the  defendants  give 
him  security  by  the  undertaking  of  at  least  two  sufficient  sureties, 
in  an  amount  sufficient  to  satisfy  said  demand  besides  costs  [or 
in  an  amount  equal  to  the  value  of  the  property  which  has  been 
or  is  about  to  be  attached],  in  which  case  to  take  such  undertak- 
ing. 

And  whereas,  the  said  defendants  are  desirous  of  giving  the 
undertaking  mentioned  in  the  said  writ 

Now,  therefore,  we,  t}\c  undersigned,  residents  of  Pine  Grove 
tozvnship,  in  tlie  county  of  Monterey,  in  consideration  of  the 
premises,  and  to  prevent  the  levy  of  said  attachment,  do  hereby 
jointly  and  severally  undertake  in  the  sum  of  three  hundred  (300) 
dollars  gold  coin  of  the  United  States,  and  promise  to  the  effect 
that  if  the  said  plaintiff  sfwll  recover  judgment  in  said  action,  we 
will  pay  to  the  said  plaintiff  the  amount  of  said  judgment,  to- 
gether with  the  costs,  not  exceeding  in  all  the  sum  of  three  hun- 
dred (300)  dollars,  gold  coin  of  the  United  States. 

(All  courts.) 

NOTE.— California,  C,  C.  P.,  sec  868. 

No.    1250. — Undertaking — Appeal   from   Fine   and   Imprison- 
ment. 

[Title  of  Court  and  Cause.] 

Know  alIv  Men  by  these  Presents  :  That  we,  J.  D.,  as  prin- 
cipal, and  R.  R.  and  E.  S.,  as  sureties,  are  held  and  firmly  bound 
unto  the  people  of  the  state  of  Califo-rnia,  in  tlie  sura  of  five  hun- 
dred dollars,  for  the  payment  of  which,  well  and  truly  to  be  made, 
we  bind  ourselves,  our  heirs,  executors,  and  administrators,  joindy 
and  severally,  firmly  by  these  presents. 

Signed  with  our  hands,  and  sealed  with  our  seals,  this  fifth 
day  of  August,  ipo6. 

The  condition  of  the  above  undertaking  is  such,  that,  whereas, 
the  said  /.  D.  was,  on  the  fourth  day  of  Augi^t,  iqoO,  before 
£.  V.  M.,  Esq.,  a  justice  of  the  peace,  in  and  for  township  of 
Clarendon,  county  of  Marin,  duly  convicted  of  the  crime  of  [state 
the  crime],  as  follows :  Tlie  crime  of  carrying  a  concealed  weapon; 


728  New  Book  of  Forms. 

or  of  assault  and  battery,  etc.,  and  upon  said  conviction,  it  was 
ordered  and  adjudged  by  the  said  justice,  that  the  said  /.  D.  pay 
a  fine,  the  sum  of  fifty  dollars,  and  that  said  /.  D.  be  impris- 
oned in  the  county  jail,  in  and  for  the  said  county  of  Marin,  till 
sqid  fine  be  paid,  said  term  of  imprisonment  not  to  exceed  twenty- 
live  days. 

And' whereas,  the  said  /.  D.  is  desirous  of  appealing  from  the 
decision  and  judgment  of  said  justice  to  tlie  superior  court  of  the 
county  of  Marin; 

Now,  therefore,  we,  the  undersigned,  hereby  undertake  that  if 
the  said  judgment  shall  be  affirmed,  or  modified,  or  the  appeal 
be  dismissed  by  the  said  superior  court,  that  the  said  J.  D.  shall 
well  and  tridy  pay,  or  cause  to  be  paid,  the  fine  aforesaid,  the  sum 
of  fifty  dollars,  or  such  part  of  said  fine  as  the  said  superior  court 
may  direct;  if  the  judgment  is  affirmed  or  modified,  or  the  appeal 
dismissed,  or  in  case  the  judgment  be  reversed,  and  the  case  re- 
manded for  a  new  trial,  that  he  will  appear  in  the  court  to  which 
the  case  may  be  remanded,  and  submit  himself  to  the  orders  and 
processes  thereof,  then  this  obligation  to  be  null  and  void,  other- 
wise to  be  and  remain  in  full  force. 

XOTE. — California,  Pen.  C.  sec.  1273.  If  the  judgment  is  a  fine, 
the  amount  may  be  deposited  in  lieu  of. 


No.  1 25 1. — Undertaking — Appeal  from   Judgment  of   Impris- 
onment. 

[Title  of  Court  and  Cause.] 

Know  ali.  Men  by  these  Presents  :  That  we,  /.  D.,  as  prin- 
cipal, and  R.  R.,  and  B.  S.,  as  sureties,  are  held  and  firmly  bound 
unto  the  people  of  the  state  of  California,  in  the  sum  of  five  hun- 
dred dollars,  for  the  payment  of  which,  well  and  truly  to  be  made, 
we  bind  ourselves,  our  heirs,  executors  and  administrators,  jointly 
and  severally,  firmly  by  these  presents. 

Signed  with  our  hands  and  sealed  with  our  seals,  this  fifth  day 
of  August,  igo6. 

The  condition  of  the  above  undertaking  is  such,  that  whereas 
the  said  7.  D.  was,  on  the  second  day  of  August,  igo6,  before  A. 
J.  C,  Esq.,  a  justice  of  the  peace  in  and  for  Dam  township,, 
county  of  Siskiyou,  duly  convicted  of  the  crime  of  petit  larceny, 
and  upon  said  conviction  it  was  ordered  and  adjudged  by  the 
said  justice  that  the  said  /.  D.  be  imprisoned  in  the  county  jail, 
in  and  for  the  county  of  Siskiyou,  for  the  term  of  four  months. 

And  whereas,  the  said  /.  D.  is  desirous  of  appealing  from  the 
<^!ecision  and  judgment  of  said  justice  of  the  county  court,  in  and 
for  the  county  of  Siskiyou. 


Justicf/s  Court.  729 

Now,  therefore,  if  the  said  J.  D.  shall  surrender  himself  in 
execution  of  tfvc  judgment,  upon  its  being  alTirmcd,  modified,  or 
upon  the  appeal  being  dismissed  by  the  said  superior  court,  or  in 
case  the  judgment  be  reversed,  and  the  case  remanded  for  a  new 
trial,  thai  he  will  appear  in  the  court  to  which  the  case  may  be  re- 
matuicd,  and  submit  himself  to  the  orders  and  processes  thereof; 
then  this  obligation  to  be  null  and  void  and  of  no  effect;  other- 
wise, to  be  and  remain  in  full  force  and  virtue. 

NOTK— California,  Pen,  C,  sec  1273. 


No.  1252. — Undertaking — Bail  Bond — GeneraL 
[Title  of  Court  and  Cause.] 

An  order  having  been  made  on  the  twenty-sixth  day  of  Janu- 
ary, jpo6,  by  G.  W.  F.,  Esq.,  a  justice  of  the  peace  of  township 
Three,  San  Mateo  county,  that  /.  S.  be  held  to  answer  and  to  ap- 
pear for  trial  before  the  said  justice,  at  his  office,  on  the  twenty- 
eighth  day  of  January,  ipo6  [to  which  time  the  hearing  of  this 
case  has  been  adjourned],  upon  a  charge  of  carrying  a  concealed 
weapon,  upon  which  he  has  been  admitted  to  bail  in  the  sum  of 
■five  hundred  dollars,  and  which  charge  is  pending  in  that  court 
against  him  in  behalf  of  the  people  of  the  state  of  California; 

Now  we,  R.  J.,  a  resident  of  Redwood  City,  and  by  occupation 
a  farmer,  and  T.  S.,  a  resident  of  San  Mateo,  and  by  occupation 
a  farmer,  hereby  undertake  that  the  above-named  J.  S.,  will  ap- 
pear and  answer  the  charge  above  mentioned,  in  whatever  court 
it  may  be  prosecuted,  and  will  at  aU  times  hold  himself  amenable 
to  the  orders  and  processes  of  tJve  court,  and  if  convicted,  will  ap- 
pear for  judgment,  and  render  himself  in  execution  thereof ;  or, 
if  he  fail  to  perform  either  of  these  conditions,  that  zvc  zdll  pay 
to  the  people  of  the  state  of  California  the  sum  of  five  hundred 
dollars. 

(All  courts.) 

NOTK — California,  Pen.  C,  sees.   1268-1278. 


No.  1253. — Undertaking  on  AppeaL 
[Title  of  Court  and  Cause.] 

Whereas,  fJ.  A.  W.,  the  defendant  in  the  above-entitled  action, 
has  appealed  to  the  superior  court  of  the  county  of  Sierra,  from  a 
judgment  made  and  entered  against  him  in  the  said  action,  in 
the  said  justice's  court,  in  favor  of  the  plaintiff  in  the  said  ac- 
tion, on  the  tliird  day  of  .Afay.  1006,  for  the  recovery  of  the  pos- 
session of  certain  lands  and  premises  therein  described,  and  sixty 


730  New  Book  of  Forms. 

dollars  damages,  for  the  detention  thereof,  and  one  hundred  dot' 
lars,  costs  of  suit;  or  for  the  sum  of  two  hundred  dollars,  and 
s^xty-sezxn  dollars  costs,  or  for  the  recovery  of  certain  personal 
property,  etc. 

Now,  therefore,  in  consideration  of  the  premises,  and  of  such 
appeal,  we,  the  undersigned,  do  hereby  jointly  and  severally,  un- 
dertake and  promise  in  the  sum  of  one  hundred  dollars,  that  the 
said  appellant  will  pay  all  costs  tvhich  may  be  awarded  agamst 
him  on  said  appeal,  or  on  a  withdrawal  or  dismissal  thereof,  not 
exceeding  one  hundred  dollars,  to  which  amount  we  acknowledge 
ourselves  jointly  and  severally  bound. 

And  whereas,  the  appellant  is  desirous  of  staying  the  execu- 
tion of  the  said  judgment  so  appealed  from,  in  so  far  as  relates 
to  the  delivery  of  possession  of  the  said  land  and  premises,  etc.,  we 
do  further,  in  consideration  thereof,  and  of  the  premises,  jointly 
and  severally  undertake  and  promise  in  the  further  sum  of  two 
hundred  dollars  (being  the  amount  for  that  purpose  fixed  by  the 
justice  of  said  court)  ;  that  during  the  possession  of  said  property 
by  the  appellant,  he  znll  not  commit,  or  suffer  to  be  committed, 
any  waste  thereon,  and  tlujt  if  the  said  judgment  appealed  from 
be  affirmed,  or  the  appeal  dismissed  or  zinthdrazun,  or  if  judgment 
be  recovered  against  him  in  the  action  in  the  superior  court,  he 
will  pay  the  value  of  the  use  and  occupation  of  the  property  from 
the  time  of  the  appeal  until  the  delivery  of  possession  thereof,  not 
exceeding  the  sum  of  two  hundred  dollars,  so  as  aforesaid  fixed 
by  the  said  justice  of  said  court,  by  which  the  said  judgment  was 
rendered;  and  that  appellant  will  pay  any  judgment  and  costs  that 
may  be  recovered  against  him  in  the  said  action  in  the  superior 
court,  not  exceeding  two  hundred  dollars,  as  fixed  by  the  justice 
of  said  court. 

NOTE. — In  California  the  same  general  form  will  answer  for  all 
appeals.  A  bond  on  appeal  must  be  given  to  pay  costs,  and  to  prose- 
cute the  appeal,  and  to  pay  any  judgment  recovered  in  appellate  court: 
Cal.  C.  C.  P.,  sec.  978. 

No.    1254. — Undertaking — Bond  for  Appearance   of  Witness, 

etc. 

[Title  of  Court  and  Cause.] 

Before  S.  B.  S.,  Esq.,  justice  of  the  peace. 

Personally  appeared  in  the  justice's  court,  in  and  for  the  town- 
ship of  Lewiston,  and  county  of  Trinity,  in  open  court,  R.  R.  and 
E.  S.,  and  acknowledged  themselves,  and  each  of  them,  justly 
indebted  to  the  people  of  the  state  of  California,  in  the  sum  of 
Hze  hundred  dollars. 

Sealed  with  their  seals,  and  dated  this  twenty-Hfth  day  of  De- 
cember, igo6. 

The  condition  of  the  above  obligation  is  such,  that  whereas 
an  order  having  been  made  on  the  fourth  day  of  August,  ipod. 


Justice's  Court.  731 

by  S.  R.  S.,  a  justice  of  the  peace  in  and  for  the  county  of  Trin- 
ity, lliat  y.  D.  be  held  to  answer  upon  a  charge  of  grand  larceny. 
And  whereas,  on  the  examination  of  said  /.  D.,  upon  the  charge 
aforesaid,  /.  S.  was  examined  as  a  witness  on  the  part  of  the 
pto])le  of  the  state  of  California;  and  whereas,  said  /.  S.  is  a 
mnt<'rial  witness  for  the  people  of  the  state  of  California; 

Nozv,  therefore,  we,  the  said  R.  R.  and  B.  S.,  hereby  under- 
take tiial  the  aboz'e-iia))icd  J.  S.  shall  appear  and  testify  on  the 
part  of  the  people  of  the  state  of  California  against  said  J.  D.,  in 
whatever  court  the  deposits  and  statements  are  to  he  sent,  or,  if 
he  fail  to  perform  either  of  these  conditions,  that  we  will  pay  the 
people  of  the  state  of  California  the  sum  of  five  hundred  dollars. 

(All  courts.) 

NOTE.— Cal.  Pen.  C,  sec.  878. 


No.   1255. — Undertaking — Keep  the  Peace,  to. 
[Title  of  Court  and  Cause.] 

Personally  appeared  in  the  justice's  court  of  Colusa  township, 
in  the  county  of  El  Dorado,  R.  B.  and  C.  D.,  and  acknowledged 
themselves,  and  each  of  them,  indebted  to  the  people  of  the  state 
of  California  in  the  sum  of  five  tlwusand  dollars. 

Dated  and  signed  this  tenth  day  of  August,  ipo/. 

The  condition  of  this  obligation  is  such  that  whereas,  the  above- 
bounden  R.  B.  has  been  held  to  keep  the  peace  by  order  of  A.  L. 
C,  a  justice  of  the  peace  of  said  township,  made  on  the  ninth  day 
of  August,  190J. 

Now,  if  the  said  R.  B.  shall  keep  the  peace  toward  the  people 
of  the  state  of  California,  and  particularly  toward  D.  F.  G.  of 
said  tozvnship,  for  six  months  from  the  date  of  said  order,  then 
this  obligation  to  be  void,  otherwise  to  remain  in  full  force  and 
efi'ect. 

(All  courts.) 

NOTE. — In  California,  an  information  may  be  laid  before  a  magis- 
trate that  a  person  has  threatened  to  commit  an  offense  against  th« 
person  or  property  of  another.  If  it  turns  out  to  be  true,  a  bond  to 
keep  the  peace,  etc.,  may  be  required:  Pen.  C,  sec.  706. 

No.  1256. — Undertaking — Postponement  of  Action. 
[Title  of  Court  and  Cause.] 

We,  the  undersigned,  are  bound  to  A.  B.  C,  the  plaintiff  here- 
in, in  the  sum  of  $2^0.  The  condition  of  this  undertaking  is 
that,  whereas,  this  case  was  this  day  called  for  trial  in  said 
court,  and  said  defendant  being  under  arrest,  moved  the  court, 
on  affidavit  showing  sufficient  cause,  to  postpone  tlie  said  trial 


732  New  Book  of  Forms. 

for  thirty  days  from  date,  on  account  of  the  absence  of  a  material 
icitness  for  defendant,  and  the  said  motion  having  been  by  said 
justice  granted  on  condition  that  defendant  file  an  undertaking 
in  said  action,  to  be  approved  by  him,  in  the  sum  of  $2^0,  to  the 
effect  that  said  defendant  will  render  himself  amenable  to  the 
process  of  said  court  during  the  pendency  of  said  action,  such 
as  may  be  issued  to  enforce  the  judgment  therein,  or  that  the  sure- 
ties will  pay  the  plaintiff  the  amount  of  any  judgment  that  may  be 
recovered  in  the  action,  not  exceeding  $2^0. 

NOTE. — In  actions  in  justices'  courts  more  than  ten  days  will  not 
be  granted  unless  an  undertaking  be  given  for  the  payment  of  any 
judgment  recovered  against  the  party  demanding  the  adjournment: 
CaL  C.  C.  P.,  sec.  877. 


No,   1257. — Venire. 
[Title  of  Court  and  Cause.] 

State  of  California, 

County  of  Lake, 

Big  Valley  Township. — ss. 

Before  R.  H.  L.,  justice  of  the  peace. 
To  the  Sheriff  or  any  Constable  of  said  County,  Greeting: 

You  are  hereby  commanded  to  summon  twenty-five  citizens 
qualified  to  serve  as  jurors,  to  be  and  appear  at  my  office  in  said 
Big  Valley  township,  in  the  county  of  Lake,  at  ten  o'clock  A.  M., 
on  the  twenty-sixth  day  of  July,  iQoy,  to  act  as  jurors  in  a  civil 
action  wherein  W.  W.  L.  is  plaintiff,  and  /.  S.  is  defendant;  and 
of  this  writ  make  legal  service  and  due  return. 

NOTE.— California,  C.  C  P.,  sec.  230. 


No.  1258. — Venire — Indorsement. 

[Title  of  Court  and  Cause.] 

I  hereby  certify  that  in  compliance  with  the  within  writ,  I 
have  summoned  the  following  named  persons  to  act  as  jurors  in 
the  within-mentioned  action,  to  wit:  [Names  of  persons  sum- 
moned. ] 

(All  courts.) 

NOTK— California-  C.  C.  P.,  sec.  230. 


Justice's  Court.  733 


No.   1259. — Verdict — Defendant   (or  Plaintiff). 
[Title  of  Court  and  Cause.] 

We,  the  jury,  find  for  defendant 
(All  courts.) 

NOTE.— California,  C.  C.  P.,  Beca.  624-628. 

No.  1260. — Verdict — Defendant — Counterclaim. 

[Title  of  Court  and  Cause.] 

We,  the  jury,  find  for  defendant  on  his  counterclaim,  ii:    the 
sum  of  $173. 
(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  624-628. 

No.    1261. — Verdict — Plaintiff. 

[Title  of  Court  and  Cause.] 

We,  the  jury,  find  for  plaintiff,  and  assess  his  damages  at  $200. 
(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  624-628. 


No.  1 262. — Verdict — Replevin — Plaintiff. 
[Title  of  Court  and  Cause.] 

We,  the  jury,  find  for  plaintiff,  and  we  find  the  value  of  the 
])roperty  in  controversy  to  be  $200,  and  that  plaintiff  is  entitled 
to  a  return  thereof  from  defendant.  We  also  find  for  plaintiff 
m  the  sum  of  $100  damages  for  Llie  taking  and  detention  of  said 
property  by  defendants. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  624-628. 


No.  1263. — Verdict — Replevin — Defendant. 

[Title  of  Court  and  Cause.] 

We,  the  jury,  find  for  defendant,  and  we  find  the  value  of 
the  property  in  controversy  to  be  $200,  and  that  defendant  is  en- 
tided  to  a  return  tliereof  from  plaintiff.     We  also  find  for  defend- 


^^34  New  Book  of  Forms. 

ant  in  the  sum  of  $ioo  damages  for  the  taking  and  detention  of 
said  property  by  plaintiff. 
(All  courts.) 

KOTE.— California,  C.   C.  P.,  sees.  624-628. 

No.   1264. — Verdict — Replevin  for  Defendant. 

[Title  of  Court  and  Cause.] 

We,  the  jury,  find  for  defendant,  and  we  find  the  value  of  the 
property  in  controversy  to  be  $200,  and  that  defendant  is  entitled 
to  a  return  thereof  from  plaintiff.  We  also  find  for  defendant 
in  the  sum  of  $100  damages  for  the  taking  and  detention  of  said 
property  by  plaintiff. 

(All  conns.) 

No.  1265. — Verdict — Replevin — Specific  Portions  of  Property. 

[Title  of  Court  and  Cause.] 

W'e,  the  jury,  find  for  [either  party]  and  we  find  the  value  of 
all  the  property  in  controversy  to  be  $200,  and  that  [either  party] 
is  entitled  to  a  return  thereof  from  [either  party].  We  also  find 
that  the  brindle  cow  described  in  the  [complaint  or  answer]  is 
worth  $^0.  We  also  find  for  [defendant  or  plaintiff]  in  the  sum 
of  $100  damages  for  the  taking  and  detaining  of  said  property  by 
[either  party]. 

(All  courts.) 

No.  1266. — Verdict — Special  Issues  Submitted. 

[Title  of  Court  and  Cause.] 

1.  Was  plaintiff  on  the  Urst  day  of  May,  jpo6,  the  owner  of 
and  entitled  to  the  possession  of  a  hnndle  cow  named  Moot 

2.  Did  defendant  on  said  day  enter  the  premises  of  plaintiff, 
and  drive  said  cow  away,  and  take  possession  of  her,  without 
plaintiff's  consent? 

3.  Did  defendant  have  said  cow  in  his  possession  at  the  date 
of  the  commencement  of  this  action? 

4.  What  is  the  value  of  said  cow? 

5.  Has  plaintiff  sustained  damages  on  account  of  the  taking 
of  said  cow  by  defendant  [if  you  find  that  plaintiff'  owned  her 
and  defendant  took  her  away]  ? 

6.  What  damages  has  plaintiff  sustained  by  reason  of  the 
taking  of  said  cow  by  defendant  [if  you  find  that  he  took  her]  ? 

(All  courts.) 

NOTE.— California,  C.   C.  P.,  sees.  624-628. 


Justice's  Court.  735 


No.  1267. — Verdict — Special  Issues. 

[Title  of  Court  and  Cause.] 

We,  the  jury  in  the  above-entitled  matter,  do  find  this,  our 
verdict,  as  by  the  answers  to  the  interrogatories  below  stated, 
signed  by  our  foreman : 

first  Issue.      [Repeat  the  interrogatory.]     Answer — Yes. 
Second  Issue.     [Repeat  the  interrogatory.]     Answer — Yes. 
Third  Issue.      [Repeat  the  interrogatory.]     Answer — Yes. 
Fourth  Issue.      [Repeat  the  interrogatory.]     Answer — $100. 
Fifth  Issue.     [Repeat  the  interrogatory,  except  the  last  clause.] 
Answer — Yes. 

Sixth  Issue.     [Repeat  the  interrogatory,  except  the  last  clause.] 
Answer — $§0. 
(All  courts.) 


No.  1268. — Verdict — Replevin — Specific  Portions  of  Property. 
[Title  of  Court  and  Cause.] 

We,  the  jury,  find  for  [either  party]  and  we  find  the  value  of 
^1  the  property  in  controversy  to  be  $300,  and  that  [either  partv] 
i^  entitled  to  a  return  thereof  from  [either  party].  We  also  find 
that  the  hrindle  cow  described  in  the  [complaint  or  answer]  is 
worth  $50.  We  also  find  for  [defendant  or  plaintiff]  in  the  sum 
of  $100  damages  for  the  taking  and  detaining  of  said  property  by 
[either  party]. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  624-628. 


No.  1269. — Verdict — Special  Issues. 
[Title  of  Court  and  Cause.] 

1.  Was  plaintiflF  on  the  first  day  of  May,  igoy,  the  owner  of 
and  entitled  to  the  possession  of  a  brindle  cow  named  Moo? 

2.  Did  defendant  on  said  day  enter  the  premises  of  plaintiff, 
and  drive  said  cozv  away,  and  take  possession  of  her,  without 
plaintiff's  consent? 

3.  Did  defendant  have  said  cow  in  his  possession  at  the  date 
of  the  commencement  of  this  action? 

4.  What  was  the  value  of  said  cowf 


736  New  Book  of  Forms. 

5.  Has  plaintiff  sustained  damaj:^es  on  accotmt  of  the  taking 
of  said  cozu  by  defendant  [if  you  find  that  plaintiff  owned  her 
and  defendant  took  her  away]  ? 

6.  What  damages  has  plaintiff  sustained  by  reason  of  the  tak- 
ing of  said  cow  by  defendant  [if  you  find  that  he  took  her]  ? 

(All  courts.) 

NOTE.— California,  a  C.  P.,  sees.  624-628. 


No.  1270. — Verdict — Special  Issues. 
[Title  of  Court  and  Cause.] 

We,  the  jury  in  the  above-entitled  matter,  do  find  this,  our 
verdict,  as  by  the  answers  to  the  interrogatories  below  stated, 
signed  by  our  foreman : 

First  Issue.     [Repeat  the  interrogatory.]     Answer — Yes. 

Second  Issue.     [Repeat  the  interrogatory.]     Answer — Yes. 

Third  Issue.      [Repeat  the  interrogatory.]     Answer — Yes. 

Fourth    Issue.      [Repeat    the    interrogatory.]     Answer — $100. 

Fifth  Issue.  [Repeat  the  interrogatory,  except  the  last  clause,] 
Answer — Yes. 

Sixth  Issue.     [Repeat  the  interrogatory,  except  the  last  clause.] 
Answer — $^0. 
(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  624-628. 


No.  1 27 1. — Warrant — ^Arrest. 

[Title  of  Court  and  Cause.] 

The  people  of  the  State  of  California,  to  any  Sheriff,  Constable, 
Marshal  or  Policeman  in  the  County  of  Napa: 

A  complaint  (or  information)  upon  oath,  having  been  this  day 
laid  before  me,  by  B.  D.,  that  the  crime  of  burglary  has  been 
committed,  and  accusing  7.  S.  thereof,  you  are  therefore  com- 
manded forthwith  to  arrest  the  above-named  /.  S.,  and  bring  him 
before  me  forthwith,  at  my  office  in  said  township,  in  said  county 
of  Napa  [or,  in  case  of  any  absence  or  inability  to  act,  before  the 
nearest  or  most  accessible  magistrate  m  this  county],  to  be  dealt 
with  according  to  law. 

(All  courts.) 

NOTE.— California,  Pen.  C,  sec.  1427. 


Justice's  Court.  "j-tj 

No.  1272. — Warrant — Indorsement  of  Service. 
[Title  of  Court  and  Cause.] 

I  hereby  certify,  that  I  received  the  within  warrant  on  the  hf- 
tcenth  day  of  June,  ipo6,  and  served  the  said  warrant  bv  arrest- 
ing the  within  named  defendant,  /.  S.,  and  bringing  him  into 
court,  til  is  fifteenth  day  of  June,  ipoy. 

The  within  named  /.  S.,  having  been  brought  before  me  under 
this  warrant,  is  committed  for  examination  to  the  Sheriff  of  the 
county  of  Napa. 

(All  courts.) 

NOTE.-— When  complaint  is  made  before  a  justice  or  police  judge  of 
the  commission  of  an  offense  triable  in  snch  courts,  a  warrant  must  be 
issued  for  the  arrest  of  the  person  chajged:   Cal.  Pen.  C,  sec  1427. 

No.  1273. — Warrant — Search, 

[Title  of  Court  and  Cause.] 

State  of  California, 

County  of  Contra  Costa, — ss. 

The  People  of  the  State  of  California,  to  any  Sheriff,  Constable, 
Marshal,  or  Policeman  in  the  County  of  Contra  Costa. 
Proof,  by  affidavit,  having  been  this  day  made  before  me  by 
/.  B.,  tlwt  at  the  house  of  H.  A.  W.,  at  Xo.  ^^7  California  street, 
in  the  town  of  Martinez,  in  said  county,  in  room  No.  y2,  in  a  tin 
box,  in  an  old  hair  trunk  under  a  bedstead,  there  is  a  gold  hunt- 
ing-case watch.  No.  172,351,  D.  &  Co.,  makers,  Dogtown,  Sierra 
Co.,  Cal.,  which  watch  was  stolen  from  the  person  of  affiant  by 
A.  D.,  on  or  about  April  i,  ipo/,  and  there  is  probable  ground 
for  believing  that  said  affidavit  is  true.  [If  under  the  statute  the 
search  may  be  made  in  cither  the  day  or  night.  So  state  in  tive 
zvarrant.] 

You  are  therefore  commanded  to  make  immediate  search,  in 
the  daytime  of  the  house  of  H.  A.  W.,  No.  557  California  street, 
in  the  town  of  Martinec,  in  the  said  county,  for  the  following 
described  property  [description  as  above,]  and  if  you  find  the 
same,  or  any  part  thereof,  to  bring  it  forthwith  before  me,  at  my 
courtroom,  in  Brayton  township,  in  said  Contra  Costa  county. 

(All  courts.) 

NOTE. — A  search-warrant  is  onlv  issued  upon  affidavit,  naming  or  de- 
scribing the  person,  and  particularly  describing  the  property  and  place 
to  be  searched:   Cal.  Pen.  C,  sec  1529. 
New  Forma — 47 


738  '  New  Book  o?  Forms. 


No.   1274. — Writ — Attachment. 

[Title  of  Court  and  Cause.] 

The  people  of  the  State  of  California,  to  the  Sheriff  or  any  Con- 
stable of  the  County  of  Sacramento,  Greeting: 
You  are  hereby  commanded  to  attach  and  safely  keep  all  the 
property  of  the  above-named  defendant  in  this  county,  not  exempt 
from  execution,  or  so  much  thereof  as  may  be  sufficient  to  satisfy 
the  plaintiff's  demand,  to  wit,  twenty-eight  dollars  and  tifty  cents, 
gold  coin  of  the  United  States,  besides  the  costs,  unless  the  said 
defendant  shall  give  you  security  by  the  undertaking  of  two  sittfi- 
cient  sureties,  in  an  amount  sufficient  to  satisfy  said  demand,  be- 
sides costs,  in  which  case  you  will  take  such  undertaking. 

Make  due  return  thereof. 

(All  courts.) 

NOTE. — The  -vrrit  is  directed  to  the  sheriff  or  any  constable  of  the 
county,  or  the  sheriff  of  any  other  county,  and  must  require  him  to  at- 
tach and  safely  kee])  all  the  property  of  the  defendant  within  his  county 
not  exempt  from  execution,  or  so  much  thereof  as  may  be  sufficient  to 
satisfy  the  plaintiff's  demand,  the  amount  of  which  must  be  stated  in 
conformity  with  tbe  complaint,  unless  the  defendant  give  him  security, 
by  the  undertaking  of  two  sufficient  sureties,  in  an  amount  sufficient  to 
Batisfv  such  demand,  besides  costs;  in  which  case,  to  take  such  under- 
taking: Cal.  C.  C.  P.,  sec.  868. 


JUSTIFICATION  OF  SURETIES. 


No.  1275. — Sureties,  Justification  of — Civil  Cases. 
[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

5".  D.  and  F.  R.,  the  sureties  whose  names  are  subscribed  to  the 
above  undertaking,  being  severally  duly  sworn,  each  for  himself, 
says  that  he  is  one  of  the  sureties  named  in  the  above  undertaking ; 
that  he  is  a  resident  and  householder  in  said  city  [or  state] 
and  county,  and  is  worth  the  sum  in  the  said  undertaking  specified 
as  the  penalty  thereof,  over  and  above  all  his  just  debts  and  lia- 
bilities, exclusive  of  property  exempt  from  execution. 

[All  courts.] 

NOTE. — In  California,  in  all  cases  where  an  nndertal'ing,  with  sureties, 
is  required  by  the  provisions  of  the  Code  of  Civil  Procedure,  the  officer 


Letters  Testamentary    and  Administration.        739 

taking  the  same  must  require  the  sureties  to  accompany  it  with  an  affi- 
davit that  they  are  each  residents  and  householders,  or  freeholders,  with- 
in the  state,  and  are  each  worth  the  sura  specified  in  the  undertaking, 
over  and  above  all  their  just  debts  and  liabilities,  exclusive  of  property 
exempt  from  execution;  but  when  the  amount  specified  in  the  undertak- 
ing exceeds  three  thousand  dollars,  and  there  are  more  than  two  sure- 
ties thereon,  they  may  state  in  their  afTidavits  that  they  are  severally 
worth  amounts  less  than  that  expressed  in  the  undertaking,  if  the  whole 
amount  be  equivalent  to  that  of  two  sufficient  sureties:  Cal.  C.  C.  P., 
sec.  1057. 

No.    1276. — Justification — Sureties   of   Criminal   Cases. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

S.  D.  and  F.  R.,  persons  whose  names  are  subscribed  as  the 
sureties  to  the  above  undertaking,  being  severally  sworn,  each  for 
himself,  says,  that  he  is  one  of  the  sureties  named  in  the  above 
undertaking;  that  he  is  a  resident  and  a  householder  within  the 
county  of  Fresno,  and  state  of  California,  and  that  he  is  worth  the 
amount  specified  in  the  said  undertaking  as  the  penalty  thereof, 
over  and  above  all  his  just  debts  and  liabilities,  exclusive  of  prop- 
erty exempt  from  execution. 

(AH  courts.) 

NOTE. — The  qualifications  of  hail  are  as  follows:  1.  Each  of  them 
must  be  a  resident  householder,  or  freeholder  within  the  state;  but  the 
court  or  magistrate  iray  refuse  to  accept  any  person  as  bail  who  is  not 
resident  of  the  county  where  bail  is  offered:  2.  They  must  be  each  worth 
the  amount  specified  in  the  undertaking,  exclusive  of  property  exempt 
from  execution;  but  the  court  or  magistrate,  on  taking  bail,  may  allow 
more  than  two  sureties  to  justify  several!}-  in  amounts  less  than  that  ex- 
pressed in  the  undertaking,  if  the  justification  be  equivalent  to  that  of 
sufficitit  bail.  The  bail  must  in  all  cases  justify  by  affidavit  taken  be- 
fore the  magistrate,  that  they  each  possess  the  qualifications  provided  as 
aforesaid.  The  magistrate  may  further  examine  the  bail  upon  oath 
concerning  their  sufficiencv,  in  such  manner  as  he  may  deem  proper: 
CaL  Pen.  Code,  sees.  1279,' 1280. 


LETTERS  TESTAMENTARY  AND  ADMINIS- 
TRATION. 


No,    1277. — Letters   Testamentary. 
[Tiile  of  Court  and  Estate.] 

The  last  will  of  P.  C,  deceased,  a  copy  of  which  is  hereto  an- 
nexed, having  been  proved  and  recorded  in  the  superior  court  of 
the  county  of  Sacra})icnto,  T.  M.,  who  is  named  therein,  is  hereby 
appointed  executor,  with  G.  B. 


740  New  Book  oe^  Forms. 

Witness,  T.  H.  B.,  clerk  of  the  superior  court  of  the  county  of 
Sacramento,  ^vilh  the  seal  of  the  court  affixed,  the  fourth  «iay  of 
May,  ipo6. 

State  of  California, 

City  and  County  of  Sacramento, — ss.^ 

I  do  solemnly  swear  that  I  will  perform,  according  to  law,  the 
duties  of  executor  of  the  last  will  and  testament  of  P.  C,  deceased. 

NOTE. — In  California  the  above  form  down  to  and  including  the 
words  "By  order  of  the  court,  G.  H.,  Clerk,"  is  a  copy  of  section  1360, 
Code  of  Civil  Ptoeedure.  The  words  in  script  are  not  in  the  section,  be- 
ing blanks.  The  section  commences  by  words  "Letters  testamentary 
must  he  substantially  in  the  following  form."  The  word  "substanti- 
auy"  auujuiiZLa  any  form  similar  in  meaning.  All  the  states  and  terri- 
tories have  statutory  forms  substantially  like  those  used  in   California. 


No.    1278 — Letters — Administration — Will    Annexed — Elxecu- 
tor  Dying  After  Qualifying. 

[Title  of  Court  and  Estate.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

The  last  will  of  F.  R.,  having  been  admitted  to  probate  in  the 
above-entitled  court,  and  /.  C.  R.,  having  been  appointed  and 
qualified  as  executor  of  said  will,  and  the  said  executor  having 
died,  before  said  estate  is  closed,  C.  R.  is  hereby  appointed  ad- 
ministrator, with  the  will  annexed,  of  the  estate  of  said  F.  R., 
deceased. 

NOTE. — On  the  death  of  the  sole  surviving  executor  of  a  last  will, 
letters  of  administration,  with  the  will  annexed,  of  the  estate  of  the 
testator  Irft  unadministered   must  be  issued:   C.  C.  P.,  sec.  1353. 

If  a  will  names  two  or  more  executors  to  serve  upon  the  inability, 
declination  or  d(»ath  of  the  first  executor,  they  will  be  appointed  in  the 
order  provided  in  the  will:  Id.,  sec.  1350. 

It  appears  that  in  case  of  the  death  of  the  sole  executor  the  executor 
with  the  will  annexed  must  be  entitled  to  succeed  to  or  share  in  the 
distribution  of  the  decedent 's  estate.  Therefore,  none  of  the  persona 
entitled  to  letters  of  adrniuistration  in  case  of  intestacy  seem  to  be  en- 
titled to  letters  of  administration  with  the  will  annexed  unless  entitled 
to  succeed  to  his  personal  estate  or  some  portion  thereof:  Id.,  see.  1365. 

The  word  "succeed,"  if  construed  to  refer  to  the  word  "succession" 
as  used  in  section  1383  of  the  Civil  Code,  then  being  entitled  to  succeed 
in  case  of  intestacy,  and  being  disinherited  under  the  will,  would  not 
in  the  opinion  of  some  good  lawyers,  bar  a  person  from  obtaining  letters 
of  administration  with  the  will  annexed  in  preference  to  beneficiaries, 
not  entitled  to  letters  of  administration  upon  the  estate  of  intestate 
decedents. 

In  the  body  of  section  1365,  Code  of  Civil  Procedure,  the  word  "suc- 
ceed" is  used  as  above  mentioned;  but  in  subdivision  7,  "The  next  of 
kin  entitled  to  share  in  the  distribution  of  the  estate"  are  entitled  to 
letters. 


jUettkks  Ticstamentary  and  Administr.\tion.         741 


No,      1279. — Letters — Administration — Will      Annexed — Will 
not   Appointing   Executor. 

[Title  of  Court  and  Estate.] 

State  of  California, 

County   of  Sacramento, — ss. 

The  last  will  of  A.  M.,  deceased,  a  copy  of  which  is  hereto  an- 
nexed, having  been  proved  and  recorded  in  the  superior  court  of 
the  city  and  county  of  Sacramento,  and  there  being  no  executor 
named  in  the  will,  residing  in  this  state,  W.  P.  is  hereby  appointed 
administrator  with  the  will  annexed. 

Witness:  T.  H.  B.,  clerk  of  the  superior  court,  county  of  Sac- 
ramento, with  the  seal  of  the  court  affixed,  tlie  seventeenth  day  of 
April,  igo6. 

By  order  of  the  court. 

NOTE. — There  being  no  executor  named  in  a  win,  the  court  -vdll  ap- 
point an  executor  with  the  will  annexed.  In  such  case  the  person  en- 
titled to  administer  in  case  of  intestacy  is  entitled  to  such  letters:  CaL 
C.  C.  P.,  sees.  1350,  135.-?. 

As  to  form  of  letters,  see  Id.,  sec.  1361. 


No.  1280. — Letters — Administration  of — GeneraL 
[Title  of  Court  and  Estate.] 

State  of  Califormj, 

City  and  County  of  San  Francisco, — ss. 

M.  J.  is  hereby  appointed  administratn>  of  the  estate  of  T.  J., 
deceased. 

Witness:  W.  A.  S.,  clerk  of  the  superior  court  of  the  city  and 
county  of  San  Francisco,  with  tlie  seal  thereof  affixed,  this  six- 
teenth day  of  June,  igo6. 

By  order  of  the  court.  Clerk. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

L  M.  J.,  do  solemnly  swear  that  I  will  faithfully  perform,  ac- 
cordinq-  to  law,  the  duties  of  administratrur  of  the  estate  of  T.  J., 
deceased. 

M.  J. 
NOTE.— California,  C.  C,  sec.  1362. 


742  New  Book  of  Forms. 

No.    1 28 1. — Letters — Administration — Special. 
[Title  of  Court  and  Estate.] 

/.  W.  is  hereby  appointed  special  administrator  of  the  estate  of 
H.   JV.,  deceased. 

Witness:  W.  A.  S.,  clerk  of  the  superior  court  in  and  for  the 
cii\  and  county  of  San  Francisco,  with  the  seal  of  tlie  said  court 
affixed,  this  ninth  day  of  May,  igo6. 

By  order  of  the  court. 

NOTE. — In  California,  when  there  is  delay  in  granting  letters,  or  when 
Bueh  letters  are  granted  irregularly,  or  no  bond  is  filed  as  required,  or 
when  no  application  is  made  for  letters,  or  when  an  executor  or  admin- 
istrator dies,  or  is  suspended  or  removed,  the  superior  court,  or  a  judge, 
must  appoint  a  special  administrator  to  collect  and  take  charge  of  the 
estate  of  the  decedent  in  whatever  county  the  same  may  be  and  to  exer- 
cise other  powers  necessary  for  the  preservation  of  the  estate  [or  he 
may  direct  the  public  administrator  of  his  county  to  take  charge  of 
the'  estate] :  Cal.  C.  C.  P.,  sees.  1411-1417. 


LOST  PROPERTY. 


No.   1282. — Lost  Property — Affidavit — Finder. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

C.  W.  C,  being  duly  sworn,  deposes  and  says,  that  he  is  a 
citizen  of  the  United  States,  above  twenty-one  years  of  age,  and  a 
resident  of  No.  p^/  Howard  street,  in  the  city  and  county  of  San 
Francisco,  state  of  California;  that  on  the  fifth  day  of  July,  JQOj, 
in  the  bay  of  San  Francisco,  in  an  open  boat,  apparently  aban- 
doned, there  being  no  person  in  the  same,  and  zvhich  boat  was  be- 
ing driven  by  the  wind  and  tide  towards  the  bar,  off  Fort  Point, 
at  the  rate  of  about  eight  miles  an  hour,  the  following  described 
property,  viz. : 

One  lot  of  fishing  tackle,  consisting  of  lines,  rods,  nets,  baskets, 
hooks,  etc.;  one  demijohn  of  Tanglefoot's  A  i  whisky;  one  large 
basket  of  lunch;  two  pairs  of  rubber  boots;  one  box  of  cigars;  one 
package  of  smoking  tobacco ;  two  pipes;  two  rolls  of  blankets;  one 
small  tent;  one  coffee-pot;  two  tin  plates;  two  table  knives  and 
forks,  and  a  small  lot  of  groceries. 

That  he  saved  the  said  property  by  taking  the  said  boat  to 
Washington  street  wharf,  and  by  storing  the  said  goods  in  C.  & 
K.'s  warehouse,  No.  'J2S2  Webb  street,  in  said  city;  that  he  does 


Lost  Property — Mandamus.  743 

not  know  zuJio  the  ozvner  of  said  property  is;  that  the  value  thereof 
is  over  one  hundred  dollars,  and  that  he  has  not  recently  withheld, 
or  disposed  of,  any  part  of  said  property. 

NOTE. — California,  Pol.  C,  sec.  3136;  Alaska,  Codes,  pt.  5,  c.  30,  seca. 
296-309;    Idaho,    Pen.    C,    sec.    4954;    Montana,    Pol.    O,    sec.    2900. 


MANDAMUS. 


No.  1283. — Mandamus — Alternative. 
[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California,  to  [the  Tribunal  Corpo- 
ration, Board  or  Person,  to  whom  it  is  directed],  Greeting: 

Whereas,  it  manifestly  appears  to  us  by  the  affidavit  of  /.  S., 
on  the  part  of  the  said  /.  D.,  the  plaintiff,  and  the  party  benefi- 
cially interested  herein,  that  [state  generally  the  allegation  against 
the  party  to  whom  it  is  directed],  and  that  there  is  not  a  plain, 
speedy,  and  adequate  remedy  in  the  ordinary  course  of  law : 

Therefore,  we  do  command  you,  that  immediately  after  the  re- 
ceipt of  this  writ,  you  do  [the  act  required  to  be  performed],  or 
that  you  show  cause  before  this  court,  at  the  courtroom  thereof, 
in  the  New  City  Hall,"m  the  city  and  county  of  San  Francisco,  on 
the  4th  day  of  August,  igo6,  at  the  opening  of  the  court  on  that 
day,  why  you  have  not  done  so. 

NOTE.— CaHfornia,  C.  a  P.,  sees.  1084-1087. 

No.  1284. — Mandamus — Peremptory. 
[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California  [to  the  Tribunal,  Corpora- 
tion, Board  or  Person,  to  whom  it  is  directed].  Greeting: 
.  Whereas,  it  manifestly  appears  to  us  by  the  affidavit  of  /.  S., 
on  the  part  of  the  said  plaintiff  and  the  party  beneficially  in- 
terested herein,  that  [state  generally  the  allegation  against  the 
party  to  whom  it  is  directed]  ;  and  that  there  is  not  a  plain,  speedy, 
and  adequate  remedy  in  the  ordinary  course  of  law. 

Therefore,  we  do  command  you  that  immediately  after  the  re- 
ceipt of  this  writ,  you  do  [the  act  required  to  be  performed]. 

NOTE. — In  California  the  writ  may  be  issued  by  any  court,  except  a 
justice's  or  police  court,  to  any  inferior  tribunal,  corporation,  board, 
or  person  to  compel  performance  of  an  act   which  the  law  specially  en- 


744  New  Book  of  Forms. 

joins  as  a  duty  resulting  from  an  office,  trust,  or  station;  or  to  compel 
the  admission  of  a  partj'  to  a  right,  or  office,  to  which  he  is  entitled,  and 
from  which  he  is  .nlawfully  precluded  by  such  inferior  tribunal,  cor- 
poration, bo"-d,  or  person.  It  issues  when  there  is  not  a  plain,  speedy, 
and  adequate  remedy  at  law.  It  is  issued  upon  affidavit  upon  the  ap- 
plication of  the  party  beneficially  interested.  It  is  either  alternative  or 
peremptory:  Cal.  C.  C.  P.,  sees.  1084-1087;  Alaska,  Codes,  pt.  4,  c.  56, 
sees.  552-565;  Arizona,  C.  C,  par.  3076;  Idaho,  C.  C.  P.,  sec.  3771;  Mon- 
tana, C.  C.  P.,  sec.  1963;  Nevada,  Comp.  Laws,  sec.  3544;  New  Mexico, 
Comp.  Laws,  sec.  2763;  North  Dakota,  C.  C.  P.,  sees.  6112,  6120;  Oregon, 
Codes  and  Statutes,  sec.  611;  South  Dakota,  C.  C.  P.,  sec.  776;  Utah,  Rev. 
Stats.,  sees.  3643,  3644;  Washington,  Ballinger's  Codes,  see.  5575;  Wyom- 
ing, Eev.  Stats.,  sec.  4198. 


NOTICE. 


No.  1285. — Notice  to  Plaintiff  of  Adverse  Claim. 
[Title  of  Court  and  Cause.] 

You  will  please  take  notice,  that  defendant  will,  on  the  third 
day  of  April,  A.  D.  igo6,  at  the  office  of  B.  R.,  Esq.,  justice  of  the 
peace,  at  the  town  of  C,  county  of  M.,  at  the  hour  of  ten  o'clock 
A.  M.,  of  that  day,  apply  to  said  justice  of  the  peace  for  an  order 
substituting  H.  N.  as  defendant  in  this  action,  in  place  of  defend- 
ant, and  discharging  said  defendant  from  liability  in  said  action. 

Said  motion  to  be  based  on  the  pleadings  herein,  and  the  affi- 
davit of  defendant,  a  copy  of  which  is  served  herewith,  and  will 
be  made  on  the  ground  that  defendant  has  no  interest  in  the  re- 
sidt  of  said  action,  and  that  said  H.  N.  is  the  real  party  in  interest 
therein. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  380,  385. 


No.   1286. — Notice  of  Decision. 
[Title  of  Court  and  Cause.] 

You  will  please  take  notice,  that  the  defendant's  demurrer  to 
the  complaint  herein  has  been  sustained,  and  you  are  given  two 
days  in  which  to  amend. 

(All  courts.) 

NOTE. — Time  runs  from  the  date  of  service  of  notice:  Cal.  C  C  P., 
sees.  1003-1017.     In  justice's  court,  Id.  860. 


Notice.  745 


No.  1287. — Notice  that  Case  has  been  Transferred. 
[Title  of  Court  and  Cause.] 

You  will  please  take  notice,  that  the  above-entitled  case  was, 
on  the  first  day  of  April,  ipo6,  by  S.  C,  Esq.,  justice  of  the  peace 
of  B.  township,  county  of  C,  transferred  to  my  court  for  trial ; 
and  you  are  notified  that  the  said  case  has  been  set  for  trial,  and 
will  be  tried  before  me,  at  my  office,  at  H.  township,  in  the  town 
of  S.,  in  said  county,  on  Monday,  April  6,  ipo6,  at  the  hour  of  10 
o'clock  A.  M. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec.  850. 


No.  1288. — Notice — Case  is  Set  for  TriaL 
[Title  of  Court  and  Cause.] 

You  will  please  take  notice,  that  the  above-entitled  action  has 
been  set  for  trial  before  me,  at  my  office,  at  Mud  Flat,  Yuba 
county,  at  p  A.  M.,  of  January  p,  ipo6. 

Indorsed :  Service  of  the  within  is  admitted  this  seventh  day  of 
January,  ipo6  [and  signed]. 

NOTE.— California,  C.  C.  P.,  sec.  850. 


No.  1289. — Notice — Letters,  Application  for. 

[Title  of  Court  and  Estate.] 

Notice  is  hereby  given  that  M.  J.  has  filed  with  the  clerk 
of  this  court  a  petition,  praying  for  letters  of  administration  of 
the  estate  of  T.  J.,  deceased,  and  that  Monday,  the  i§fli  day  of 
June,  ipo6,  at  elc7'cn  o'clock  A.  M.  of  said  day,  at  the  City  Hall, 
in  the  city  and  county  of  San  Francisco,  has  been  set  for  hearing 
said  petition,  wlicn  and  where  any  person  interested  may  appear 
and  show  cause  why  the  said  petition  should  not  be  granted. 

NOTE. — In  California,  when  a  petition  for  letters  of  administration  is 
filed,  the  clerk  gives  notice  by  causing  notices  to  be  posted  in  at  least 
three  public  places  in  the  county,  one  of  which  must  be  at  the  place 
where  the  court  is  held,  containing  the  name  of  the  decedent,  the  name 
of  the  applicant,  and  the  time  at  which  the  application  will  be  heard. 
Such  notice  must  be  given  at  least  ten  days  before  the  hearing:  Cal.  C. 
C.  P.,  sec.  1373;  Arizona,  C.  C,  par.  1655;  Idaho,  C.  C.  P.,  sec.  4049; 
I^fontana,  C.  C.  P.,  sec.  2442;  Nevada,  Comp.  Laws,  sec.  2S36;  New 
Mexico,  Cora-  Laws,  sees.  1962,  197S,  1984;  Soutli  Dakota,  Probate  Code, 
sees.  8S,  90;  Utah,  Stats.  1901,  p.  95;  Wa:hiugton,  Ballinger '3  Codes, 
&(.c.  6144;  "Wyoming,  Rev.  Stats.,  sec.  4048. 


746  New  Book  of  Forms. 

No.  1290.— Notice— Will,  Time  for  Proving. 

[Title  of  Court  and  Estate.] 

Notice  is  hereby  given,  that  Monday,  the  3th  day  of  May,  1906, 
at  10  o'clock  A.  M.  of  said  day,  and  the  courtroom  of  said  court, 
at  the  City  Hall,  in  the  county  of  Sacramento,  state  of  California, 
has  been  appointed  as  the  time  and  place  for  proving  the  will  of 
said  P.  C,  deceased,  and  for  hearing  the  application  of  T.  M.  and 
G.  B.,  for  the  issuance  to  them  of  letters  testamentary  thereon. 

NOTE. — In  California,  when  a  petition  for  probate  of  a  will  is  filed  and 
the  will  produced,  the  clerk  sets  the  petition  for  hearing  upon  some 
day  not  less  than  ten  nor  more  than  thirty  days  from  the  production  of 
the  will.  Notice  of  the  hearing  is  given  by  the  clerk  by  publishing  in  a 
newspaper  of  the  county;  if  there  is  none,  then  by  three  written  or 
printed  notices  posted  at  three  of  the  most  public  places  in  the  county. 
If  the  notice  is  published  in  a  weekly  newspaper  it  must  appear  therein 
on  at  least  three  different  days  of  publication,  and,  if  in  a  newspaper 
published  oftener  than  once  a  week,  it  shall  be  so  published  that  there 
must  be  at  least  ten  days  from  the  first  to  the  last  day  of  publication, 
both  the  first  and  the  last  day  being  included.  If  the  notice  is  by  post- 
ing it  must  be  given  at  least  ten  days  before  the  hearing:  Cal.  C.  C.  P., 
Bees  1303,  1304;  Alaska,  Codes,  pt.  4,  c.  81,  sec.  781;  Arizona,  C.  C,  pars. 
160.T  1606;  Idaho,  C.  C.  P.,  sees.  4000,  4001;  Montana,  C.  C.  P.,  sees. 
2325'  2326;  Nevada,  Comp.  Laws,  sees.  2759,  2795;  New  Mexico,  Comp. 
L?ws  sees  1962,  1978,  1984;  North  Dakota,  Probate  Code,  sees.  6291, 
6292;' South  Dakota,  Probate  Code,  sees.  39,  40;  Utah,  Stats,,  1899,  p. 
33;  Wyoming,  Eev.  Stats.,  sees.  4576,  4577. 


No.  1291. — Notice — Account,  Settlement  oi 
[Title  of  Court  and  Estate.] 

Notice  is  hereby  given  that  M.  J.,  the  administratrix  of  the 
estate  of  T.  J.,  deceased,  has  rendered  and  presented  for  settle- 
ment, and  filed  in  said  court,  her  annual  account  of  her  adminis- 
tration of  said  estate ;  and  that  Monday,  the  twenty-seventh  day  of 
June,  igo6,  at  eleven  o'clock  A.  M.,  at  the  courtroom  of  said 
court,  at  the  City  Hall,  in  San  Francisco,  in  said  city  and  county, 
has  been  duly  appointed  by  the  judge  [or  by  the]  said  court,  for 
the  settlement  of  said  account,  at  which  time  and  place  any  person 
interested  in  said  estate  may  appear  and  file  exceptions  in  writing 
to  the  said  account,  and  contest  the  same. 

NOTE. — In  California,  when  an  account  is  rendered  for  settlement,  the 
clerk  appoints  a  day  for  the  settlement  and  thereupon  gives  notice  by 
posting  in  at  least  three  public  places  in  the  county,  setting  forth  the 
name  of  the  estate,  the  executor  or  administrator,  and  the  day  appointed 
for  the  settlement.  If.  upon  the  final  hearing  at  the  time  of  settlement, 
the  court  deems  the  notice  insufficient,  he  may  order  such  further  notice 


Notice.  747 

to  be  g\von  as  may  seom  to  him  proper:  Cal.  C.  C.  P..  hoc.  1633;  Alaska, 
Codes,  pt.  4,  c.  86,  sec.  862;  Arizona,  C.  C.  par.  1867;  Idaho,  C.  C.  P., 
see.  42r)3;  Montana,  C.  C.  P.,  sec.  2791;  Nevada,  Comp.  Laws,  sec.  2973; 
New  Mexico,  Comp.  Laws,  sees.  2005,  2006;  North  Dakota,  Probate 
Code,  sees.  6496,  6497;  Oregon,  Codes  and  Statutes,  sec.  1202;  South  Da- 
kota, Probate  Code,  sec.  286;  Utah,  Rev.  Stats.,  sec.  3942;  Washington, 
Ballinger's  Codes,  sec.  6327;   Wyoming,  Eev.  Stata.,  see.  4722. 


No.  1292. — Notice — Mortgage,  Application  of  Society  to  Ef- 
fect a  Loan  by. 

[Title  of  Court  and  Cause.] 

Pursuant  to  an  order  of  the  Honorable  R.  Y.  H.,  judge  of  said 
superior  court,  notice  is  hereby  given  to  any  and  all  persons  in- 
terested in  the  real  property  of  said  society,  and  in  any  matters 
thereof,  to  show  cause,  if  any  they  can,  on  Saturday,  the  fourth 
dav  of  August,  ipo6,  on  that  day,  or  as  soon  thereafter  as  the 
same  can  be  heard  at  the  courtroom  of  said  court,  in  the  city  and 
county  of  San  Francisco,  why  the  trustees  of  the  society  should 
not  be  authorized  by  order  of  this  court  to  mortgage  the  real 
property  of  said  society,  situated  [description].  And  to  make, 
execute,  and  deliver  with  such  mortgage  a  bond  or  promissory 
note,  under  the  corporate  seal  and  in  the  corporate  name  of  said 
societv,  as  evidence  of  the  indebtedness,  to  secure  which  the  mort- 
gage is  to  be  made. 

NOTE. — California,  C.  C,  see.  598;  Arizona,  C.  C,  par.  894;  Idaho,  C. 
C,  sec.  2280;  Montana,  C.  C,  sees.  86-1,  86.5;  Nevada,  Comp.  Laws,  sec. 
894;  Oregon,  Codes  and  Statutes,  see.  5186;  South  Dakota,  C.  C,  sec. 
757;  Washington,  Ballinger's  Codes,  sec.  4439;  Wyoming,  Eev.  Stats^ 
sees.  3225-3227. 


No.   1293. — Notice,  Appeal  of. 

[Title  of  Court  and  Cause.] 

You  will  please  take  notice  that  the  defendants  in  the  above- 
entitled  action  hereby  appeal  to  the  supreme  court  of  the  state 
of  California,  from  the  judgment  therein  entered,  in  the  said  su- 
perior court,  on  the  tiventy-fourth  day  of  January,  IQ06,  in  favor 
of  the  plaintiff  in  said  action,  and  against  said  defendants;  and 
from  the  whole  thereof,  and  also  from  the  order  denying  said  de- 
fendant's motion  for  ne-zv  trial,  made  and  entered  in  the  minutes  of 
said  court,  the  fourth  day  of  April,  ipo6. 

NOTE. — In  California  an  appeal  is  taken  by  filing  with  the  clerk  of 
the  court  in  which  the  judgment  or  order  appealed  from  is  entered,  a  no- 
tice stating  the  appeal  from  the  same,  or  some  specific  part  thereof,  and 
serving  a  similar  notice  on  the  adverse  party,  or  his  attorney:  Cal.  G. 
C.  P.,  sec.  940;  Alaska,  Codes,  pt.  11,  c.  43,  sees.  441-452;  Arizona,  C.  C^ 
pars.  1496,  1508,  2108;  Idaho,  C.  C.  P.,  sec.  3574;  Montana,  C.  C.  P.,  sec 


74S  New  Book  of  Forms. 

1724;  Nevada,  Comp.  Laws,  sees.  3426,  3676;  New  Mexico,  Comp.  Laws, 
sees.  2685,  snbsecs.  97-102,  159-174;  North  Dakota,  C.  C,  sec.  5606; 
Oregon,  Codes  and  Statutes,  sees.  549-553;  South  Dakota,  C.  C.  P.,  sec. 
349;  Utah,  Rev.  Stats.,  sees.  3305,  3306;  Washington,  Ballinger's  Codes, 
sees,  6503,  6504,  6537;   Wyoming,  Rev.   Stats.,  sees.  4397-4415. 

No.   1 294. — Notice — Attachment — Sheriffs. 

[Title  of  Court  and  Cause.] 

You  will  please  take  notice,  that  all  moneys,  goods,  credits, 
effects,  debts  due  or  owing,  and  all  other  personal  property,  in 
your  possession,  or  under  your  control,  belonging  to  the  defend- 
ant named  in  the  writ,  of  which  the  annexed  is  a  copy,  or  to  either 
of  them,  are  attached  by  virtue  of  said  writ ;  and  you  are  hereby 
notified  not  to  pay  over  or  transfer  the  same  to  anyone  but  myself. 
Please  furnish  a  statement. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec.  543;  Alaska,  Codes,  pt.  4,  c.  14,  sec. 
140;  Idaho,  C.  C.  P..  sees.  3294-3317;  Montana,  C.  C.  P.,  sec.  895;  Nevada, 
Comp.  Laws,  sec.  3223;  New  Mexico,  Comp.  Laws,  sec.  2700;  North  Da- 
kota, C.  C,  sec.  5362;  Oregon,  Codes  and  Statutes,  sec.  301;  South  Da- 
kota, C.  C.  P.,  sees.  212-224;  Utah,  Rev.  Stats.,  sees.  3073-3075;  Washing- 
ton, Ballinger's  Codes,  sec.  5362;   Wyoming,   Rev.   Stats.,  sec.  3997. 

No.  1295. — Notice — New  Trial,  Intention  to  Move  for. 

[Title  of  Court  and  Cause.] 

Please  take  notice,  that  the  defendant  intends  to  move  the  court 
for  a  new  trial  in  this  case,  upon  the  following  grounds,  viz. : 

First.  That  the  evidence  is  insufficient  to  justify  the  decision 
of  the  court,  giving  judgment  for  plaintiff. 

Second.     That  said  decision  is  against  law. 

Third.  On  acount  of  errors  in  law,  occurring  at  the  trial,  and 
excepted  to  by  the  defendant. 

There  are  other  grounds  for  new  trial  than  the  foregoing. 

The  said  motion  will  be  made  upon  a  statement  of  the  case. 

NOTfi. — In  California  the  party  intending  to  move  for  a  new  trial 
must,  within  ten  days  after  the  verdict  of  the  jury,  if  the  action  were 
tried  by  a  jury,  or  after  notice  of  the  decision  of  the  court  or  referee, 
if  the  action  were  tried  without  a  jury,  file  with  the  clerk,  and  serve 
upon  the  adverse  party,  a  notice  of  liis  intention,  designating  the  grounds 
upon  wiiich  the  motion  will  be  made,  and  whether  the  same  will  be 
made  upon  affidavits  or  the  minutes  of  the  court,  or  a  bill  of  exceptions, 
or  a  statement  of  the  case:  Cal.  C.  C.  P.,  sec.  659;  Alaska,  Codes,  pt.  2, 
c.  17,  sees.  164-172;  Arizona,  C.  C,  par.  1473;  Idaho,  C.  C.  P.,  sec.  3526; 
Montana,  C.  C.  P.,  sec.  1J73;  Nevada,  Comp.  Laws,  see.  3292;  New 
Mexico,  Comp.  Laws,  see.  2685,  subsecs.  97-102;  North  Dakota,  C.  C.,  sec. 
5474;  Oregon,  Codes  and  Statutes,  sees.  175,  177;  South  Dakota,  C.  C.  P., 
sec.  303;  Utah,  Rev.  Stats.,  see.  4953;  Washington,  Ballinger's  Codes,  sec. 
5075;  Wyoming,  Rev.  Stats.,  sec.  3749. 


Notice.  749 


No.  1296. — Notice  to  Creditors. 

[Title  of  Court  and  Estate.] 

Estate  of  T.  J.,  Deceased. — Notice  is  hereby  given  by  the 
undersi,£,nied,  administratrix  of  the  estate  of  T.  J.,  deceased,  to  the 
creditors  of,  and  all  persons  having  claims  against,  the  said  de- 
ceased to  exhibit  them,  with  the  necessary  vouchers,  within  ten 
months  after  the  first  publication  of  this  notice,  to  the  said  admin- 
istratrix, at  her  residence,  northeast  corner  of  Washington  and 
Mason  streets,  the  same  being  the  place  for  the  transaction  of  the 
business  of  said  estate,  in  the  city  and  county  of  San  Francisco. 

NOTE.— California,  C.  C.  P.,  sees.  1490-1492;  Alaska,  Codes,  pt.  4, 
c.  84,  sec.  820;  Arizona,  C.  C,  par.  17.39;  Idaho,  C.  C.  P.,  sec.  4133;  Mon- 
tana, C.  C.  P.,  sec.  2600;  Nevada,  Comp.  Laws,  sec.  2892;  New  Mexico, 
Comp.  Laws,  sees.  967-2000,  2013,  2030,  2032;  North  Dakota,  Probate 
Code,  sec.  6399;  Oregon,  Codes  and  Statutes,  sec.  1158;  South  Dakota, 
Probate  Code,  sees.  167-169;  Utah,  Rev.  Stats.,  sec.  3848;  Washington, 
Ballinger's  Codes,  sec.  6226;   Wyoming,  Rev.  Stats.,  sec.  4747. 


No.  1297. — Notice — Attachment  of  Stocks — Sheriff's, 

[Title  of  Court  and  Cause.] 

You  will  please  take  notice  that  all  stocks  or  shares,  or  interest 
in  stocks  or  shares  of  the  S.  V.  G.  and  S.  M.  Company,  in  your 
possession,  or  under  your  control,  belonging  to  the  defendant 
named  in  the  writ,  of  which  the  annexed  is  a  copy,  or  to  either 
of  them,  are  attached  by  virtue  of  said  writ ;  and  you  are  hereby 
notified  not  to  transfer  or  deliver  over  the  same  to  anyone  but 
myself.     Please  furnish  a  statement. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec.  543. 


No.  1298. — Notice — Death  of  Plaintiff. 
[Title  of  Court  and  Cause.] 

You  rnd  each  of  you  will  please  take  notice  and  are  hereby 
notified  that  the  above-entitled  action  is  pending  in  the  superior 
court  of  the  state  of  California,  in  and  for  the  city  and  county  of 
San  Francisco,  and  on  appeal  to  the  supreme  court  of  the  state  of 
California,  to  partition  certain  lands  in  said  city  and  county  of 
San  Francisco,  being  part  of  South  Beach  Block  No.  23,  lyin_^ 
hctivecn  H,  I .  S,  and  G  streets,  in  said  city  and  county  of  San 
Francisco.     That  tlie  plaintifif,  S.  D.,  is  dead.     That  the  interest 


750  Ne;\v  Book  of  Forms. 

of  said  S.  D.,  deceased,  during  his  lifetime  was  represented  by 
^Messrs.  F.  &  B.,  as  his  attorneys,  and  that  said  attorneys  since  the 
death  of  said  vS.  D.  pursuant  to  the  statutes  in  such  cases  made  and 
provided  have  continued  to  represent  said  interest.  Your  atten- 
tion is  respectfully  directed  to  said  litigation  in  order  that  you 
may  appear  therein  should  you  be  so  advised. 

NOTE.— California,  C.  C.  P.,  socs.  385,  763;  Alaska,  Codes,  pt.  4,  c. 
3,  sec.  37;  Arizona,  C.  C,  pars.  1296-1313;  Idaho,  C.  C.  P.,  sec.  3174; 
Montana,  C.  C.  P.,  sees.  587,  5S8;  Nevada,  Comp.  Laws,  sec.  3111;  New 
Mexico,  Comp.  Laws,  sec.  2685,  subsec.  171;  North  Dakota,  C.  C.  P., 
sec.  5234;  Oregon,  Codes  and  Statutes,  sees.  38-41;  South  Dakota,  C.  C. 
P.,  see.  91;  Utah,  Eev.  Stats.,  sees.  2920,  2921;  Washington,  Ballinger's 
Codes,  sec.  4837;  Wyoming,  Eev.  Stats.,  sec.  3465. 


No.  1299. — Notice — Exception  to  Sufficiency  of  Sureties. 

[Title  of  Court  and  Cause.] 

Sir:  You  will  please  take  notice  that  the  defendant  in  the 
above-entitled  action  does  not  accept  the  undertaking  given  on  the 
part  of  the  plaintiff  in  the  said  action,  upon  your  taking  the  per- 
sonal property  claimed  by  him,  but  expressly  excepts  to  the  same, 
and  to  the  sufficiency  of  the  sureties  thereto ;  and  that  such  sure- 
ties, and  each  of  them,  are  required  to  justify,  as  provided  by  law. 

(All  courts.) 

NOTE.— California,  C.  C,  sees.  529,  554,  555,  867,  948,  978,  1397; 
Alaska,  Codes,  pt.  2,  e.  22,  sees.  228-230;  Arizona,  C.  C,  pars.  426,  427; 
Idaho,  C.  C.  P.,  sees.  3258-3262;  Montana,  C.  C.  P.,  sees.  1900,  1901,  1898, 
1899;  Nevada,  Corap.  Laws,  sees.  1902,  3688,  3699,  4470,  4472,  4477; 
New  Mexico,  Comp.  Laws.  sec.  3436;  North  Dakota,  C.  C.,  sees.  5358, 
5359;  Oreg^on,  Codes  and  Statutes,  sees.  269,  271,  288,  346,  .549,  2210; 
South  Dakota,  C.  C.  P.,  sees.  170,  174.  188,  191.  222,  458;  Utah,  Rev. 
Btats.,  sees.  3024,  3026.  3049,  3051,  3085,  3493,  3831;  Washinjrton,  Bal- 
linger's Codes,  sec.  1527;  Wyoming,  Eev.  Stats.,  sees.  3424,  3425. 


No.  1300. — Notice — Justification  of  Sureties. 
[Title  of  Court  and  Cause.] 

Sir:  Please  take  notice  that  the  sureties  upon  the  undertak- 
ing of  the  plaintiff  in  the  above-entitled  action  will  justify  before 
the  county  clerk,  at  his  office  in  the  city  and  county  of  San  Fran- 
cisco, on  the  second  day  of  December,  IQ06,  at  tivo  o'clock  P.  M. 

(All  courts.) 

NOTE. — ^In  attachment:  Cal.  C.  C.  P.,  sees.  5.54,  555;  administrator's 
bond:  Id.  1393;  on  appeal:  Id.  948;  attachment  of  vessel:  Id.  821;  on 
appeal   to   superior   court:    Id.    978;    in   justice's   court,    San   Francisco: 


Notice.  751 

Id.  M;  Alaslca,  Codca,  pt.  2,  c.  22,  sees.  217,  218;  Arizxjna,  C.  C,  pars. 
426,  427;  Idaho,  C.  C.  P.,  3ec.  3752;  Montana,  C.  C.  P.,  sees.  817,  844, 
1899,  1901;  Nevada,  Comp.  Laws,  sees.  1902,  3688,  3699,  4470,  4472, 
4477;  New  Mexico,  Comp.  Laws,  sec.  3436;  North  Dakota,  C.  C~,  sees. 
6358,  5359;  Oregon,  Codes  and  Statutes,  sec.  2210;  South  Dakota,  C.  a 
P.,  sees.  170,  174,  178,  191,  222,  458;  Utah,  Rev.  Stats,  sec.  3493; 
Washington,  Ballinger's  Codes,  sec.  1527;  Wyoming,  Eev.  Stata^  seca. 
8424,  3425. 

No.  1 30 1. — Notice — Sale  of  Land — Motion  to  Set  Aside, 
[Title  of  Court  and  Estate.] 

To  A.  B. : 

You  will  please  take  notice  that  on  Friday,  June  5,  1906,  at  10 
o'clock  A.  M.,  the  administrator  of  the  estate  of  C.  D.,  deceased, 
will  move  the  court  to  set  aside  the  sale  to  you,  on  May  J,  ipo6,  by 
the  administrator  of  said  estate,  and  order  a  resale  of  the  real  es- 
tate described  as  follows  [description],  upon  the  ground  that  you 
refuse  and  neglect  to  comply  with  the  terms  of  said  sale. 

[Description.] 

Said  motion  will  be  based  upon  the  petition  of  the  administra- 
tor for  an  order  to  sell  said  real  estate,  the  order  of  the  court 
directing  the  sale  to  be  made,  the  notice  of  sale,  and  the  return  of 
sale,  and  upon  all  the  papers  and  records  on  file  in  the  matter  of 
said  estate. 

NOTE. — When  the  facts  are  as  above  stated,  a  sale  will  be  set  aside, 
and  resale  ordered.  If  at  the  resale  the  proceeds  do  not  cover  the 
bid  and  expenses  of  the  previous  sale,  such  purchaser  is  liable  for  the 
deficiency  to  the  estate:  Cal.  C.  C.  P.,  sec.  1554;  Arizona,  C.  C,  par.  1794; 
Idaho,  C.  C.  P.,  sec.  4191;  Montana,  C.  C.  P.,  sec.  26S7;  Nevada,  Comp. 
Ijaws,  sec.  2928;  New  Mexico,  Comp.  Laws.  sees.  2052-2U55;  North 
Dakota,  Probate  Codes,  sees.  6439,  6440,  6441;  Oregon,  Codes  and  Stat- 
utes, sec.  1205;  South  Dakota,  Probate  Code,  sec.  216;  Utah,  Rev.  Stats., 
Foc.  3900;  Wa.^hington,  Ballinger's  Codes,  sec.  6274;  Vvyoming,  Rev. 
Stats.,  sec.  4796. 


No.  1302. — Notice,  Motion  of. 
[Title  of  Court  and  Cause.] 

The  plaintiff  and  his  attorney  will  please  take  notice  that  upon 
affidavits  and  upon  the  files,  papers,  proceedings,  and  records  in 
the  aboi'c-cntiiled  action,  I  shall  move  the  court,  ::i  the  courtroom 
thereof,  at  the  City  Hall,  in  the  city  and  county  of  San  Francisco, 
on  the  eighth  day  of  November,  1906,  at  the  opening  of  the  court 
on  that  day,  or  as  soon  thereafter  as  counsel  can  be  heard,  that 
the  judgment  entered  by  default  against  the  defendant  in  the  said 
action,  and  all  subsequent  proceedings,  be  set  aside  for  irregu- 
larity. 

Said  motion  will  be  made  and  based  on  the  ground  that  said 


752  New  Book  of  Forms. 

default  ivas  taken  agai)ist  said  defendant  before  the  time  alloived 
by  law  for  ansivering,  and  the  extension  in  ivriting  by  the  stipu- 
lation of  said  plaintiff's  attorney  had  expired.  [State  any  other 
groujids.] 

NOTE.— California,  C.  C.  P.,  sees.  1003-1007.  The  rules  of  courts 
usually  require  that  the  ground  upon  which  the  motion  is  based  shall 
be  stated  and  also  the  documentary  and  other  evidence  shall  be  specified: 
Alaska,  Codes,  pt.  4,  c.  49,  sees.  491-494;  Arizona,  C.  C,  pars.  1.567-1578; 
Idaho,  C.  C.  P.,  sec.  3574;  Montana,  C.  C.  P.,  sec.  1822;  Nevada,  Comp. 
Laws,  sees.  3586-3594;  New  Mexico,  Comp.  Laws,  sec.  2685,  subsecs. 
97-102;  North  Dakota,  C.  C,  sees.  5714-5733;  Oregon,  Codes  and  Stat- 
utes, sees.  534-546;  South  Dakota,  C.  C.  P.,  sees.  548-562;  Utah,  Rev. 
Stats.,  sees.  3323-3329;  Washington,  Ballinger's  Codes,  sees.  4888,  4889, 
4891,  5080;  Wyoming,  Eev.  Stats.,  sees.  3595-3600. 


No.  1303. — Notice — Ejectment,  Pendency  of  Action  of. 

[Title  of  Court  and  Cause.] 

Notice  is  hereby  given,  that  an  action  has  been  commenced  in 
the  superior  court  of  the  city  and  county  of  San  Francisco,  state 
of  California,  by  the  above-named  plaintiff,  against  the  above- 
named  defendant,  to  recover  certain  real  estate  and  the  posses- 
sion, with  damages  for  the  withholding  thereof;'  and  that  the 
premises  affected  by  this  suit  and  described  in  said  complaint,  are 
situated  in  the  said  city  and  county,  state  of  California,  and  are 
bounded  and  described  as  follows,  to  wit:  [Description.] 

NOTE. — In  California  in  an  action  affecting  the  title  or  the  right 
of  possession  of  real  property,  the  plaintiff,  at  the  time  of  filing  the 
complaint,  and  the  defendant,  at  the  time  of  filing  his  answer,  when 
affirmative  relief  is  claimed  in  such  answer,  or  at  any  time  afterward, 
may  record  in  the  office  of  the  recorder  of  the  county  in  which  the  prop- 
erty is  situated  a  notice  of  the  pendency  of  the  action,  containing  the 
names  of  the  parties  and  the  object  of  the  action  or  defense,  and  a 
description  of  the  property  in  that  county  affected  thereby.  Prom  the 
time  of  filing  such  notice  for  record  only  shall  a  purchaser  or  encum- 
brancer of  the  piroperty  affected  thereby  be  deemed  to  have  constructive 
notice  of  the  pendency  of  the  action,  and  only  of  its  pendency  against 
parties  designated  by  their  real  names:  Cal.  C.  C.  P.,  sec.  409;  Arizona, 
C.  0.,  par.  1318;  Idaho,  C.  C.  P.,  sec.  3189;  Montana,  C.  C.  P.,  sees.  634, 
1.346;  Nevada,  Comp.  Laws,  sees.  3122,  3364,  3394;  North  Dakota,  C.  C, 
sees.  5251,  5798,  5907;  Oregon,  Codes  and  Statutes,  see.  5476;  South 
Dakota,  C.  C.  P.,  sec.  108;  Utah,  Rev.  Stats.,  see.  2953;  Washington, 
Ballinger's  Codes,  sec.  4887;  Wyoming,  Rev.  Stats.,  sec.  3529. 


No.   1304. — Notice — Foreclosure — Pendency  of  Action. 

[Title  of  Court  and  Cause.] 
Notice  is  hereby  given,  that  an  action  has  been  commenced  in 

the  superior  court  of  the  city  and  county  of  San  Francisco,  state 
of  California,  by  the  above-named  plaintiff,  against  the  above- 


Nonce.  753 

named  defendant,  for  the  foreclosure  of  mortgage,  made  the 
fourth  day  of  June,  IQ06,  by  R.  R.,  to  /.  D.,  and  recorded  in  the 
office  of  the  county  recorder  of  the  city  and  county  of  San  Fran- 
cisco, state  of  California,  on  the  fourth  day  of  June,  ic)o6,  in  Hber 
ninety-eight  of  Mortgages,  page  forty-seven,  and  that  the  prem- 
ises thereby  conveyed,  described  in  said  complaint  anri  aftccN-l 
by  this  suit,  are  situated  in  the  said  city  and  county,  state  of  Cal' 
ifornia,  and  are  described  as  follows,  to  wit:  [Vescnptiun  of 
property.] 

NOTE.— California,  C.  C.  P.,  sec.  409;  Arizona,  C.  C,  par.  131S; 
Idaho,  C.  C.  P.,  sec.  3189;  Montana,  C.  C.  P.,  sees.  634,  1346;  Nevada, 
Comp.  Laws,  sees.  3122,  3364,  3394;  North  Dakota.  C.  C.  P.,  sees.  5231, 
5798,  5907;  Oregon,  Codes  and  Statutes,  sec.  5476;  Sonth  Dakota,  C. 
C.  P.,  sec.  108;  Utah,  Rev.  Stats.,  sec.  2953;  Washington,  Ballinger's 
Codes,  sec.  4887;  Wyoming,  Eev.  Stata.,  sec.  3529. 


No.  1305. — Notice — Quiet  Title,  Pendency  of  Action  to. 
[Title  of  Court  and  Cause.] 

Notice  is  hereby  given,  that  an  action  has  been  commenced  in 
the  superior  court  of  the  city  and  county  of  San  Francisco,  state 
of  California,  by  the  above-named  plaintiff,  against  the  above- 
named  defendants,  to  quiet  the  title  to  the  premises  and  real 
estate  in  the  complaint  in  the  said  action,  and  hereinafter  de- 
scribed, and  to  determine  all  and  every  claim,  estate,  or  interest 
therein  of  said  defendants,  or  either  or  any  of  them,  adverse  to 
the  said  plaintiff,  and  the  premises  affected  by  this  suit  are  sit- 
uated in  the  said  city  and  county,  and  are  bounded  and  described 
as  follows,  to  wit:  [Description.] 

NOTE. — California,  C.  C.  P.,  sec.  409;  Arizona,  C.  C,  par.  1318;  Idaho, 
C.  C.  P.,  sec.  3189;  Montana,  C.  C.  P.,  sees.  634,  1346;  Nevada,  Comp. 
Laws,  sees.  3122,  3364,  3394;  North  Dakota,  C.  C.  P..  sees.  5251,  5798, 
6907;  Oregon,  Codes  and  Statutes,  sec.  5476;  South  Dakota,  C.  C.  P., 
sec.  108;  Utah,  Rev.  Stats.,  sec.  2953;  Washington,  Ballinger's  Codes, 
sec.  4887;  Wyoming,  Rev.  Stats.,  sec.  3329. 

No.  1306. — Notice — Sale  of  Real  Estate  Postponed. 
[Title  of  Court  and  Cause.] 

Notice  is  hereby  given  that  the  sale  described  in  the  following 
original  notice  of  sale  is  postponed  to  Saturday,  June  ^,  1906,  at 
12  M.     [Copy  of  notice.] 

Witness  my  hand  this  ^d  day  of  May,  ipo^. 

Administrator  of  the  Estate  of  A.  B.,  Deceased. 

NOTE. — At  the  time  of  postponement  notice  inu.<!t  be  given  bv  a  pub- 
lic   declaration    in    the    usual  form:   "I  now  give  notice  tliat  the  aalc  de- 
New  Forms — 18 


754  New  Book  of  Forms. 

scribed  in  this  notice  [reading  it  all  except  tlie  description  of  tTie  pro-n- 
erty]  is  now  postponed  to  Saturday,  June  3,  1906,  at  12  M.  and  to  this 
place." 

If  it  is  postponed  for  more  than  one  day,  notices  must  be  posted 
in  three  or  more  places  in  the  county  where  the  land  is  situated,  or  by 
publishing  the  same,  or  both,  as  the  time  and  circumstances  will  permit: 
Cal.  C.  C.  P.,  sec.  1558;  Arizona,  C.  C,  par.  1798;  Idaho,  C.  C.  P.,  sec. 
4188;  Montana,  C.  C.  P.,  sec.  2691;  Nevada,  Comp.  Laws,  sec.  2932; 
New  Mexico,  Comp.  Laws,  sees.  2052-2059;  North  Dakota,  Probata 
Code,  2438;  South  Dakota,  Probate  Code,  sec.  216;  Utah,  Rev.  Stats., 
sec.  3897;  Washington,  BaUinger's  Codes,  sec.  6270;  Wyoming,  Rev. 
Stats.,  sec.  4799. 


No.  1307. — Notice — Sale  of  Personal  Property. 
[Title  of  Court  and  Estate.] 

Notice  is  hereby  given  that  in  pursuance  of  an  order  of  the 
superior  court  of  the  city  and  county  of  San  Francisco,  state  of 
California,  made  on  the  thirteenth  day  of  August,  igo6,  in  the 
matter  of  the  estate  of  T.  J.,  deceased,  the  undersigned,  admin- 
istratrix of  the  estate  of  said  deceased,  will  sell  at  public  auction 
[or  will  sell  at  private  sale,  at  (stating  place)  if  preferable,  or 
without  stating  place,  but  stating  place  where  the  executor  or 
administrator  may  be  found]  to  the  highest  bidder,  for  cash,  gold 
coin  of  the  United  States,  on  Tuesday,  the  twenty-fifth  day  of 
August,  jpo6,  at  12  o'clock  M.,  at  the  auction  salesrooms  of  S.  P. 
M.,  314  Montgomery  street,  in  said  city  and  county,  the  following 
personal  property,  to  wit :  /  gold  zuatch  and  chain,  2j  shares  of  the 
Z.  G.  and  S.  M.  Company,  100  shares  of  the  C.  C.  M.  Company, 
50  shares  of  the  N.  and  J.  M.  Company,  and  5  shares  of  the  S. 
V.  M.  Company. 

NOTE. — In  California,  sales  of  personal  property  must  be  made  at 
public  auction,  for  [such  money  or  currency  as  the  court  may  direct] 
and  after  public  notice  for  at  least  ten  days,  by  notice  posted  in  three 
public  places  in  the  county,  or  by  publication  in  a  newspaper,  or  both, 
containing  the  time  and  place  of  sale,  and  a  [brief  description  of  the 
property  to  be  sold],  unless,  for  good  reasons  shown,  the  court,  or  a 
judge  thereof,  orders  a  private  sale  or  a  shorter  notice.  Public  sales 
of  such  property  must  be  made  at  the  courthouse  door,  or  at  the  resi- 
dence of  the.  decedent,  or  at  some  other  public  place,  but  no  sale  shall 
be  made  of  any  personal  property  which  is  not  present  at  the  time  of 
sale,  unless  the  court  otherwise  order:  Cal.  C.  C.  P.,  sec.  1526;  Alaska, 
Codes,  pt.  4,  c.  85,  sec.  836;  Arizona,  C.  C,  par.  1771;  Idaho,  C.  C.  P., 
sec.  4165;  Montana,  C.  C.  P.,  sec.  2654;  Nevada,  Comp.  Laws,  sees.  2912, 
2913;  New  Mexico,  Comp.  I^aws,  sees.  2065-2086;  North  Dakota,  Pro- 
bate Code,  sees.  6431-6434;  Oregon,  Codes  and  Statutes,  sec.  1170;  South 
Dakota,  Probate  Code,  sees.  200,  201;  Utah,  Rev.  Stats.,  sec.  3886;  Wash- 
ington, BaUinger's  Codes,   see.   6255;    Wyoming,   Rev.   Stats.,   sec.    4775, 


Notice.  755 


No.    1308. — Notice — Sale — Day    for    Hearing    Return    of. 

[Title  of  Court  and  Estate.] 

Pursuant  to  an  order  of  the  judge  of  said  court,  made  on  the 
sixtli  day  of  January,  jpo6,  notice  is  hereby  given  that  AI.  J.,  the 
ad))iinistratrix  of  the  estate  of  said  deceased,  made  to  the  said 
court,  and  filed  in  the  office  of  the  clerk  thereof,  on  said  da\ ,  a 
return  of  sale  made  by  her  on  the  fourth  day  of  January,  igo6, 
under  a  previous  order  of  said  cuuri,  ui  the  lohowing  real  esiaLc: 
and  for  the  following  named  sum,  to  wit,  the  southerly  half  of 
iifty-vara  lot  x\'o.  Opo,  in  the  city  and  county  of  San  Francisco,  for 
tnc  sum  of  $^,100,  as  will  more  fully  appear  from  said  return  filed 
as  aforesaid,  and  to  which  reference  is  hereby  made  for  further 
particulars. 

And  notice  is  hereby  further  given,  that  Monday,  the  eighteenth 
day  of  January,  ipoO,  at  eleven  o  clock  A.  M.,  at  the  courtroom  of 
said  court,  at  the  Old  City  Hall,  in  said  city  and  county  of  San 
Francisco,  has  been  fixed  for  hearing  the  said  return  when  and 
where  any  person  interested  in  the  said  estate  may  appear  and 
file  written  objections  to  the  confirmation  of  the  said  sale,  and 
may  be  heard  and  may  produce  witnesses  in  support  of  such  ob- 
jections. 

NOTE.— California,  C.  C.  P.,  sec.  1552  j  Arizona,  C.  C,  par.  1792; 
Idaho,  C.  C.  i\,  sec.  4189;  .Montana,  C.  C.  i*.,  sec.  J6S5;  Nevada,  Comp. 
Laws,  sec.  2927;  New  Mexico,  Comp.  Laws,  sees.  2052-2055;  North 
Dakota,  Probate  Code,  sec.  (3439;  Oregon,  Stats.  1903,  p.  133;  South 
Dakota,  Probate  Code,  sec.  21G;  Utah,  Rev.  Stats.,  sec.  3S9S;  Wash- 
ington, Ballinger's  Codes,  sees.  6272,  6466;  Wyoming,  Kev.  Stats.,  sec. 
4749. 


No.  1309. — Notice — Sale  of  Real  Estate — Auction, 

[Title  of  Court  and  Estate.] 

Notice  is  hereby  given  that  in  pursuance  of  an  order  of  the 
superior  court  of  the  city  and  county  of  San  Francisco,  state  of 
California,  made  on  the  seventh  day  of  December,  IQ06,  in  the 
matter  of  the  estate  of  T.  J.,  deceased,  the  undersigned,  the  ad- 
ministratrix of  the  said  estate,  will  sell  at  public  auction  [or  -will 
sell  at  private  sale,  etc.],  to  the  highest  bidder,  for  cash,  gold 
coin  of  the  United  States,  and  subject  to  confirmation  by  said 
superior  court,  on  Monday,  the  fourth  day  of  January,  igo6,  at 
twelve  o'clock  M.,  at  the  auction  salcsroovis  of  S.  P.  M.  &  So)i, 
S14  Montgomery  street,  in  the  city  and  county  of  San  Francisco, 
all  the  right,  title,  interest,  and  estate  of  the  said  T.  J.,  at  the  time 
of  his  death,  and  all  tlie  right,  title,  and  interest  that  the  estate 


756  Ne;\v  Book  of  Forms. 

has  by  operation  of  law  or  otherwise,  acquired  other  than  or  in 
addition  to  that  of  the  said  7^  /.,  at  the  time  of  his  death,  in  and  to 
all  that  certain  lot,  piece,  or  parcel  of  land  situate,  lying,  and  be- 
ing in  the  said  city  and  county  of  San  Francisco,  state  of  Cali- 
fornia, and  bounded  and  described  as  follows,  to  wit:  [Descrip- 
tion.] 

Terms  and  conditions  of  sale:  Cash,  gold  coin  of  the  United 
States,  ten  per  cent  of  the  purchase  money  to  be  paid  to  the  auc- 
tioneer on  the  day  of  sale,  balance  on  confirmation  of  sale  by  said 
superior  court.     Deed  at  expense  of  purchaser. 

NOTE. — In  California,  when  a  sale  of  land  is  ordered,  and  is  to  be 
made  at  public  auction,  notice  of  the  time  and  place  of  sale  must  be 
posted  in  three  of  the  most  public  places  in  the  county  in  which  the 
land  is  situated,  and  published  in  a  newspaper,  if  there  be  one  printed 
in  the  same  county,  but,  if  none,  then  in  such  paper  as  the  court  may 
direct,  for  three  weeks  successively  next  before  the  sale.  The  lanch  trid 
tenements  to  be  sold  must  be  described  with  common  certainty  iu  the 
notice:  Cal.  C.  C.  P.,  see.  547;  Alaska,  Codes,  pt.  4,  c.  85,  see.  836; 
Arizona,  C.  C,  par.  1787;  Idaho,  C.  C.  P.,  sec.  4182;  Montana,  C.  C. 
P.,  sec.  2680;  Nevada,  Comp.  Laws,  see.  2925;  New  Mexico,  Comp. 
Laws,  sees.  2052-2055;  North  Dakota,  Probate  Code,  sec.  6438;  Oregon, 
Codes  and  Statutes,  sec.  237;  South  Dakota,  Probate  Code,  sees.  211,  213; 
Utah,  Rev.  Stats.,  sec.  2892;  Washington,  Ballinger's  Codes,  sec  6268; 
Wyoming,  Eev.  Stats.,  see.  4775. 


No.   1310. — Notice — Substitution  of  Plaintiffs. 
[Title  of  Court  and  Cause.] 

You  and  each  of  you  will  please  take  notice  and  are  hereby 
notified  that  by  an  order  of  the  above-named  superior  court  duly 
given  and  made,  the  above-named  /.  C.  R.,  executor  of  the  last 
will  and  testament  of  S.  D.,  deceased,  as  such  executor,  and  H.  C. 
D.,  as  heir  of  said  vS*.  D.,  deceased,  have  been  substituted  as  plain- 
tiffs in  the  above-entitled  cause. 

NOTE.— California,  C.  C.  P.,  sees.  385-387;  Alaska,  Codes,  pt.  4,  c. 
3,  sec.  47;  Arizona,  C.  C.  pars.  1296-1313;  Idaho,  C.  C.  P.,  sees.  3174-3178; 
Montana,  C.  C.  P.,  sees.  587,  588;  Nevada,  Comp.  Laws,  sec.  3111;  New 
Mexico,  Comp.  Laws,  sec.  2685,  subsee.  171;  North  Dakota,  C.  C.  P., 
sec.  5234;  Oregon,  Codes  and  Statutes,  sees.  38-41;  South  Dakota, 
C.  C.  P.,  sec.  91;  Utah,  Eev.  Stats.,  sees.  2920,  2921;  Washington,  Bal- 
linger's Codes,  see.  4837;   Wyoming,  Eev.  Stats.,   sec.   3465. 


No.   131 1. — Notice — Foreclosure  of  Mortgage — Sheriff's  Sale. 

[Title  of  Court  and  Cause.] 

SHERIFF'S  SALE. 
Under  and  by  virtue  of  an  order  of  sale  and  decree  of  fore- 
closure issued  out  of  the  superior  court  of  the  city  and  county  of 


Notice.  757 

San  Francisco,  state  of  California,  on  the  twentieth  day  of  Janu- 
ary, iQOj,  in  the  above-entitled  action,  wherein  /.  A/.,  the  above- 
named  plaintiff,  obtained  a  judt^ent  and  decree  a^^ainst  M.  H.  C, 
administrator  of  the  estate  of  M.  O.,  deceased,  and  A.  C,  the  wife 
of  said  M.  H.  C,  defendants,  on  the  seT-'cnteenth  day  of  Jidy, 
190^,  which  said  decree  was,  on  the  tenth  day  of  August,  it^o6, 
recorded  in  Judgment  Book  H  of  said  court,  at  page  /dj,  I  am 
commanded  to  sell — 

All  that  certain  lot,  piece,  or  parcel  of  land  situate  in  the  city 
and  county  of  San  Francisco,  state  of  California,  and  bounded 
and  described  as  follows,  to  wit:  [Description.] 

Notice  is  hereby  g-iven  that  on  Friday,  the  eighteenth  day  of 
February,  ipoj,  at  tzvclve  o'clock  noon,  of  that  day,  in  front  of 
the  City  Hall,  in  the  city  and  county  of  San  Francisco,  I  will, 
in  obedience  to  said  order  of  sale  and  decree  of  foreclosure,  sell 
the  above-described  property,  or  so  much  thereof  as  may  be 
necessary  to  satisfy  plaintiff's  judgment,  with  interest  thereon  and 
costs  to  the  highest  and  best  bidder  for  cash,  in  gold  coin  of  the 
United  States. 

NOTE.— California,  C.  C.  P.,  sec.  6S2;  Alaska,  Codes,  pt.  4,  c.  31,  sec. 
278;  Arizona,  C.  C,  par.  2570;  Idaho,  C.  C.  P.,  sec.  .3544;  Montana, 
C.  C.  P.,  sees.  1225,  1226;  Nevada.  Conip.  Laws,  see.  331 S;  New  Mexico' 
Comp.  Laws,  sees.  3105-3135;  North  Dakota,  C.  C,  sees.  5531-5535; 
Orosron,  Codes  and  Statutes,  sees.  233-237:  South  Dakota,  C.  C.  P.,  sees! 
366-373;  Utah  Eev.  Stats.,  sec.  3249;  Washington,  Ballinger's  Codes, 
sec.  5273;  "Wyoming,  Rev.  Stats.,  sec.  3879. 


No.  131 2, — Notice — Foreclosure  of  Lien — Sheriff's  Sale. 
[Title  of  Court  and  Cause.] 

SHERIFF'S  SALE. 
Under  and  by  virtue  of  an  order  of  sale  and  decree  upon  fore- 
closure of  a  lien  issued  out  of  the  superior  court  of  the  cit\  and 
county  of  San  Francisco,  state  of  California,  on  the  tzventy-eighth 
day  of  December,  igoj,  in  the  above-entitled  action,  wherein  /.  B., 
the  above-named  plaintiff  obtained  a  judgment  and  decree  against 
Southern  Pacific  Railroad  Company,  a  corporation,  et  al.,  de- 
fendants, on  the  twenty-third  day  of  December,  1905,  which  said 
decree  was,  on  the  twenty-eighth  day  of  December,  ipoj,  recorded 
in  Judgment  Book  H,  of  said  court,  at  page  22^,  I  am  commanded 
to  sell — 

All  that  certain  lot,  piece,  or  parcel  of  land  situate,  lying,  and 
being  in  the  city  and  county  of  San  Francisco,  state  of  California, 
bounded  and  described  as  follows,  to  wit:  [Description.] 

Notice  is  hereby  given  that  on  Friday,  the  nineteenth  dav  of 
February,  ipo^,  at  tzcrhe  o'clock,  noon,  of  that  day,  in  fron\  of 


758  New  Book  of  Forms. 

the  City  Hall,  in  the  city  and  county  of  San  Francisco,  I  will,  in 
obedience  to  said  order  of  sale  and  decree  of  lien,  sell  the  above- 
described  property,  or  so  much  thereof  as  may  be  necessary  to 
satisfy  said  plaintiff's  judgment,  with  interest  thereon  and  costs, 
etc.,  to  the  highest  ana  best  bidder,  for  cash,  in  gold  coin  of  the 
United  States. 

NOTE.— California,  C.  C.  P.,  sec.  682;  Arizona.  C.  C,  par.  2570;  Idaho, 
C.  C.  P.,  sec.  3544;  Montana,  C.  C.  P.,  sees.  1225,  1226;  Nevada,  Comp. 
Laws.  sec.  3318;  New  Mexico,  Comp.  Laws,  sees.  3105-3135;  North 
Dakota,  C.  C,  sees.  5531-5535;  Oregon,  Codes  and  Statutes,  sees.  233,  237; 
South  Dakota,  C.  C.  P..  sees.  366,  373;  Utah,  Eev.  Stats.,  sec.  3249;  Wash- 
ington,  Ballinger's   Codes,   sec.   5273;   Wyoming,   Bev.    Stats.,   see.   3879. 


No.  1313. — Notice — Personal  Property,  Sheriff's  Sale  of. 
[Title  of  Court  and  Cause.] 

SHERIFF'S  SALE. 

By  virtue  of  an  execution  issued  out  of  the  superior  court  of 
the  city  and  county  of  San  Francisco,  state  of  California,  in  the 
suit  of  W.  A.  D.  against  /.  C.  P.,  duly  attested  the  eleventh  day  of 
April,  iQod,  I  have  levied  on  one  sofa,  six  lounge  chairs,  one  cen- 
ter-table, four  sets  of  curtains,  one  sideboard,  three  carpets,  one 
sofa,  and  three  chairs. 

Notice  is  hereby  given  that  on  Thursday,  the  t^venty-fourth  day 
of  May,  IQ06,  at  tzvelve  o'clock  M.,  at  the  dzvelling-house,  sit- 
iiated  on  the  southeast  corner  of  Green  and  Stockton  streets,  in 
the  city  and  county  of  San  Francisco,  I  will  sell  the  above-de- 
scribed property  to  the  highest  bidder,  for  cash. 

(All  courts.) 

j^OTE. — California,  C.  C.  P..  sec.  692;  Alaska,  Codes,  pt.  4,  c.  31,  aec. 
278;  Arizona,  C.  C,  pnr.  2^70;  Idaho,  C.  C.  P.,  sec.  3544;  Montana, 
C.  C.  P.,  sees.  1225,  1226;  Nevada,  Comp.  Laws,  sec.  3318;  New  Mexico, 
Comp.  Laws,  sees.  3105-3135;  North  Dakota,  C.  C,  sees.  5531-5535;  Ore- 
gon, Codes  and  Statntes,  sees.  233-237;  Sonth  Dakota,  C.  C.  P.,  seca. 
366-373;  Utah,  Rev.  Stats.,  sec.  3249;  Washington,  Ballinger's  Codes, 
sec.  5273;  Wyoming,  Eev.  Stats.,  sec.  3879. 


No.   1314. — Notice — Claim  is  Disputed. 

[Title  of  Court  and  Cause.] 

You  are  hereby  notified,  that  the  defendant  [or  plaintiff]  herein 
disputes  the  validity  of  your  claim  for  one  hundred  dollars,  notice 
of  which  you  have  heretofore  served  me  with ;  and  unless  you 
commence  action  to  test  the  validity  of  your  claim,  and  prosecute 
the  same  with  reasonable  diligence,  within  ten  days  from  the  date 


Notice.  751; 

hereof,  it  will  be  barred  as  a  preferred  claim,  under  the  writ  of 
attachment  [or  execution]  herein. 
(All  courts.) 

NOTE.— California,  C-  C.  P.,  sees.  1204-1207;  Ala.ska,  Codes,  pt.  5,  c. 
29,  sees.  262-295;  Arizona,  C.  C,  pars.  2928-29.34;  Idaho,  C.  C.  P.,  seca. 
3335-3472;  Montana,  C.  C.  P.,  sees.  2150-2156;  Nevada,  Comp.  Laws,  sees, 
3902-3904;  New  Mexico,  Comp.  Laws,  sees.  2216-2248;  North  Dakota, 
C.  C,  sees.  4802-4844;  Oregon,  Codes  and  Statutes,  sees.  5659-5667;  South 
Dakota,  C.  C.  P..  sees.  695-744;  Utah,  Rev.  Stats.,  sees.  1344-1346; 
Washing-ton,  Ballinger's  Codes,  sees.  5957-5959;  Wyoming,  Eev.  Stats., 
sees.  2843-2859. 

No.  13 15. — Notice — Claim  Disputed  by  Defendant. 
[Title  of  Court  and  Cause.] 

You  will  please  take  notice,  that  I  dispute  the  entire  claim  made 
by  /.  W.,  Esq.,  for  one  hundred  dollars,  for  labor  claimed  to  have 
been  performed  by  him  for  me  ay  a  miner;  you  are  notified  that 
I  am  not  indebted  to  him  to  the  value  of  anythine^  on  account  of 
labor  performed  within  sixty  days  next  preceding  the  date  of  the 
levy  by  you  of  the  writ  of  attachment  herein.  No  part  of  said 
claim  is  justly  due  from  me  to  said  claimant 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  1204-1207. 

No.    1 3 16. — Notice  to   Officer — Claim  of  Laborer. 
[Title  of  Court  and  Cause.] 

You  will  please  take  notice,  that  within  sixty  days  next  preced- 
ing the  date  of  the  levy  by  you  of  the  writ  of  attachment  against 
the  property  of  said  defendant  in  this  action,  /  rendered  labor  as 
a  miner  for  said  defendant,  and  there  is  due  from,  him  for  said 
labor  the  sum  of  $100;  and  you  are  hereby  directed  to  withhold 
said  amount  from  the  proceeds  of  said  property  attached,  and  to 
pay  the  same  to  me  on  said  labor  account. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  1204-1207. 

No.  1317. — Notice  to  Creditor  of  Laborer's  Claim. 
[Title  of  Court  and  Cause.] 

You  will  please  take  notice,  that  /.  W.  has  presented  a  claim, 
under  oath,  for  one  hundred  dollars,  which  he  claims  is  due  to  him 
from  the  defendant  herein  for  labor  as  a  miner,  tvithin  sixty  days 
next  preceding  the  levy  of  the  attachment  writ  herein. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  1204-1207. 


760  '        New  Book  of  Forms. 


No.    1318. — Notice — Claim   Disputed  by   Creditor. 

[Title  of  Court  and  Cause.] 

You  will  please  take  notice,  that  I  dispute  the  entire  claim  made 
by  /.  W.,  Esq.,  for  one  hundred  dollars,  for  labor  claimed  to  have 
been  performed  by  him  for  the  defendant  as  a  miner,  in  this  ac- 
tion, within  sixty  days  next  preceding  the  date  of  the  levy  by  you 
of  the  writ  of  attachment  herein.  No  part  of  said  claim  is  justly 
due  from  the  defendant  to  the  claimant. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  1204-1207. 


No.  13 19. — Notice — Disincorporate,  Application  to. 

[Title  of  Court  and  Cause.] 

Notice  is  hereby  given  that  the  M.  G.  Company,  a  corporation 
formed  under  the  laws  of  the  state  of  California,  has  presented 
to  the  superior  court  of  the  city  and  county  of  San  Francisco,  a 
petition  praying  to  be  allowed  to  disincorporate  and  dissolve ;  and 
that  Friday,  the  tzvelfth  day  of  September,  igo6,  at  10  o'clock 
in  the  forenoon,  or  as  soon  thereafter  as  counsel  can  be  heard,  has 
been  appointed  as  the  time,  and  the  courtroom  of  the  superior 
court  in  and  for  the  city  and  county  of  San  Francisco,  as  the 
place,  at  which  the  said  application  is  to  be  heard. 

NOTE.— California,  C.  C.  P.,  sees.  1230-1232;  Arizona,  C.  C,  par.  772; 
Idaho,  C.  C.  P.,  sec.  3837;  Montana,  C.  C.  P.,  sees.  2192,  2193;  Nevada, 
Comp.  Laws,  sec.  887;  New  Mexico,  Comp.  Laws,  sees.  434-452;  North 
Dakota,  C.  C.  P.,  sees.  5753-5794;  Oregon,  Codes  and  Statutes,  sec.  5070; 
South  Dakota,  C.  C,  sees.  446-44S;  Utah,  Eev.  Stats.,  ^ecs.  3661-3667; 
Washington,  Ballinger's  Codes,  sec.  4275;  Wyoming,  Rev.  Stats.,  sees. 
3258-3264. 


No.    1320. — Notice — Application — Discharge    from    Imprison- 
ment for. 

[Title  of  Court  and  Cause.] 

You  will  please  take  notice,  that  on  Friday,  the  tenth  day  of 
August,  A.  D.  ipo6,  at  the  hour  of  ten  o'clock  A.  M.,  or  as  soon 
thereafter  as  the  matter  can  be  heard,  I  will  apply  to  the  Honor- 
able /.  H.,  judge  of  the  superior  court  of  the  city  and  county  of 
San  Francisco,  at  the  courtroom  of  his  said  court  in  the  Nezv  City 
Hall,  in  said  city  and  county,  for  an  order  to  be  discharged  from 
imprisonment  in  the  county  jail  of  said  city  and  county,  where  I 


Notice.  761 

am  confined  as  a  prisoner  under  civil  process,  issued  out  of  the 
justice's  court  of  said  city  and  county,  in  an  action  in  said  jus- 
tice's court  entitled  A.  B.  C.  D.  v.  E.  F.  G.  H. 
(All  courts.) 

NOTE. — Califoroia,  Pen.  C,  sec.  1382;  Alaska,  Codos,  pt.  4,  c.  12,  sees, 
99-122;  Idaho,  C.  C.  P.,  sees.  3962-3073;  Montana,  (J.  C.  P.,  sees.  2060- 
2066;  Nevada,  Comp.  Laws,  sees.  3908-3917;  North  Dakota,  C.  C.  P., 
Bees.  6136,  6147;  Oregon,  Codes  and  Statutes,  sees.  219,  280,  281;  South 
Dakota,  C.  C.  P.,  sees.  790,  802;  Utah,  Rev.  Stats.,  sees.  3036-3014; 
Washington,  Ballinger'a  Codes,  sees.  5463-5492;  Wyoming,  Bev.  Stats., 
sees.  3983,  3987. 


No.  1 32 1. — Notice — Sole  Trader,  Intention  to  Become. 

[Title  of  Court  and  Cause.] 

Notice  is  hereby  given  that  I,  A.  J.,  wife  of  T,  /.,  resident  of 
the  city  and  county  of  San  Francisco,  being  desirous  of  availing 
myself  of  the  provisions  of  Title  XII,  Part  III  of  the  Code  of 
Civil  Procedure,  intend  to  make  application  to  the  superior  court 
of  the  city  and  county  of  Sati  Francisco,  state  of  California,  on 
Monday,  the  third  day  of  November,  igo6,  at  the  opening  of  the 
court  on  that  day,  or  on  such  other  day  to  which  the  hearing  may 
be  postponed  by  the  court,  for  a  judgment  and  order  of  said  su- 
perior court,  authorizing  me  to  carry  on  and  transact  business  in 
my  own  name  and  on  my  own  account  as  sole  trader.  The  nature 
of  the  business  I  propose  to  carry  on  and  conduct  is  that  of  buy- 
ing and  selling  goods,  ivares,  and  merchandise,  and  keeping  a 
general  variety  store  in  said  city  and  county  of  San  Francisco. 

NOTE.— California,  C.  C.  P.,  sec.  1812;  Idaho,  C.  C.  P.,  sec.  3884; 
Montajia,  C.  C.  P.,  sec.  2291;  Nevada,  Comp.  Laws,  sees.  545-549. 


No.   1322. — Notice — Deposition,  Taking  of. 

[Title  of  Court  and  Cause.] 

You  will  please  take  notice  that  the  depositions  of  IV.  G.  and 
/.  .1/.,  witnesses  on  behalf  of  the  plaintiffs  in  the  above-entitled 
action,  to  be  used  upon  the  trial  thereof,  will  be  taken  before  L. 
H'..  Esq.,  a  notary  public  in  and  for  the  county  of  Fhucr,  in  the 
state  of  California,  at  his  office  in  the  city  of  Auburn,  in  the 
county  of  Placer,  on  the  fourteenth  day  of  June,  1904,  between 
the  hours  of  p  A.  M.  and  4  P.  M.  of  that  day ;  commencing  at  p 
o'clock  A.  M.,  and  if  not  completed  on  that  day,  the  taking  thereof 
will  be  continued  from  day  to  day,  successively  thereafter,  and 
over  Sundays,  at  the  same  place,  until  completed. 


762  New  Book  ot^  Forms. 

And  you  will  further  take  notice,  that  the  annexed  is  a  copy  of 
an  affidavit  of  /.  D.,  one  of  said  plaintiffs,  showing  that  the  case 
is  one  in  which  depositions  may  be  taken. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  2004-2031;  Alaska,  Codes,  pt.  4, 
e.  60,  sees.  637-658;  Arizona,  C.  C,  par.  2507;  Idaho,  C.  C.  P.,  sees. 
4497-4527;  Montana,  C.  C.  P.,  sees.  3340-3367;  Nevada,  Comp.  Laws,  sees. 
3502-3510;  New  Mexico,  Comp.  Laws,  sees.  3036-3048;  North  Dakota, 
C.  C.  P.,  sees.  5673  5688;  Oregon,  Codes  and  Statutes,  sees.  835-841;  South 
Dakota,  C.  C.  P.,  sees.  511-523;  Utah.  Rev.  Stats.,  sees.  3449-3465; 
Washington,  Ballinger's  Codes,  sees.  6017-6030;  Wyoming,  Bev.  Stats- 
3711-3717. 


No.  1323. — Notice — Deposition,  Taking  oL 
[Title  of  Court  and  Cause.] 

You  and  each  of  you  will  please  take  notice,  and  you  are  hereby 
notified  that  the  deposition  of  C.  A.  the  plaintiff  in  the  above- 
entitled  action,  and  a  witness  on  behalf  of  the  defendants,  F.  A. 
and  H.  N.  will  be  taken  on  behalf  of  the  said  last-named  defend- 
ants, before  H.  S.,  Esq.,  a  notary  public  in  and  for  the  county  of 
Alameda,  state  of  California,  at  the  office  of  the  said  H.  S.,  Esq., 
Room  6,  No.  po6  Broadzvay,  in  the  city  of  Oakland,  county  of 
Alameda,  state  of  California,  on  Saturday,  the  4th  day  of  March, 
A.  D,  1905,  at  the  hour  of  ten  o'clock  A.  M.  of  that  day,  and 
if  not  completed  on  the  said  day,  the  taking  thereof  will  be  con- 
tinued from  day  to  aay  successively  thereafter,  and  over  holidays, 
at  the  same  place,  until  completed. 

And  you  are  further  notified  that  annexed  hereto  is  the  affidavit 
of  F.  A.,  one  of  the  said  last-named  defendants,  showing  that  the 
case  is  within  section  2021  of  the  Code  of  Civil  Procedure  of 
the  State  of  California. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  2021,  2031;  Alaska,  Codes,  pt.  4, 
e.  60,  sees.  637-658;  Arizona,  C.  C,  par.  2507;  Idaho,  C.  C.  P.,  sees.  4497- 
4527;  Montana,  C.  C.  P.,  sees.  3340-3367;  NNevada,  Comp.  Laws,  sees. 
3502-3510;  New  Mexico,  Comp.  Laws,  sees.  3036-3048;  North  Dakota, 
C.  C.  P.,  sees.  5673-5686;  Oregon,  Codes  and  Statutes,  sees,  839-841; 
South  Dakota,  C.  C.  P.,  sees.  511-523;  Utah,  Rev.  Stats.,  sees.  3449-3465; 
Washington,  Ballinger's  Codes,  sees.  6017-6030;  Wyoming,  Eev.  Stats., 
Bees.  3711-3717. 


No.   1324. — Notice — Witness   Out  of  the    State — Motion    for 
Commission   to    Examine. 

[Title  of  Court  and  Cause.] 

The  defendant  and  his  attorney  will  please  take  notice  that 
upon  the  affidavit  of  plaintiff  served  with  this  notice,  and  upoa, 


Notice.  763 

the  complaint  and  papers  filed  in  the  above-entitled  action,  the 
plaintiff  will  apply  to  the  Honorable  O.  P.  A.,  presiding  judge  of 
this  court,  at  the  courtroom  thereof,  in  the  city  and  county  of 
San  Francisco,  on  the  twenty-sixth  day  of  January,  IQ06,  at  the 
hour  of  ten  o'clock  A.  M.,  or  as  soon  thereafter  as  counccl  can  be 
heard,  for  an  order  directing  a  commission  to  issue  out  of,  and 
under  the  seal  of  this  court  to  take  the  testimony  of  W.  C.  a 
witness  residing  out  of  this  state,  directed  to  some  proper  person 
residing  at  the  city  of  New  York,  in  the  state  of  New  York,  then 
and  there  to  be  selected  and  appointed  by  the  judge  of  this  court. 
(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec.  2024;  Alaska,  Codes,  pt.  4,  c.  60,  sees. 
637,  658;  Arizona,  C.  C,  pt.  2.507,  Idaho,  C.  C.  P.,  sees.  4497-4527;  Mon- 
tana, C.  C.  P.,  sees.  3344-33G7;  Nevada,  Corap.  Laws,  sees.  3502-3510;  New 
Mexico,  Comp.  Laws,  sees.  3036-3048;  North  Dakota,  C.  C.  P.,  sees.  5673- 
5686;  Oregon,  Codes  and  Statutes,  sees.  839-841;  South  Dakota,  C.  C.  P., 
sees.  511-523;  Utah,  Rev.  Stats.,  sees.  3449-3465;  Washington,  Ballinger's 
Codes,  sees.  6017-6030;   Wyoming,  fiev.  Stata.,  sees.  3711-3717. 


No.  1325. — Notice — Deposition  to  Take. 
[Title  of  Court  and  Cause.] 

Please  take  notice  that  the  deposition  and  testimony  of  the  wit- 
ness in  the  foregoing  affidavit  mentioned  will  be  taken  on  the 
fourteenth  day  of  May,  IQ06,  and  before  L.  IV.,  Esq.,  a  notary 
public,  at  his  office,  No.  joz  River  street,  in  the  town  of  Auburn, 
state  of  California;  and  that  the  deposition  and  testimony  so 
taken  will  be  used  as  evidence  on  the  trial  of  tlie  above-entitled 
action. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec.  203  L 


No.  1326. — Notice — Arrest,  Plaintiff,  o£. 
[Title  of  Court  and  Cause.] 

You  will  please  take  notice,  that  I  have,  in  obedience  to  the 
order  indorsed  on  the  summons  in  this  action,  arrested  the  de- 
fendant, and  he  is  now  in  my  custody. 

Indorsed :  Service  of  the  within  notice  admitted  this  third  day 
of  July,  ipo6. 

NOTE. — In  some  states,  as  was  formerly  the  law  in  California,  an 
order  of  arrest  might  be  indorsed  on  the  summons,  and,  in  such  case,  tho 
ofliccr  was  required  to  immodiatoly  notify  the  plaintiff  or  his  attorney  of 
the  arrest.     The  offiLeer  's  duty   then  is  now  the  practice. 


764  New  Book  of  Forms. 


No.  1327. — Notice — Surety  to  His  Guarantors  to  Defend  Ac- 
tion on  a  Bond  Signed  by  Surety  and  Guarantor. 

[Title  of  Court  and  Cause.] 

You  will  please  take  notice  that  on  or  about  the  2jth  day  of 
September,  i8pp,  you  signed  and  delivered  to  A.  S.  Company  a 
certain  check  in  the  sum  of  $3,000  to  be  held  and  which  is 
held  by  it  to  indemnify  and  save  harmless  said  A.  S.  Company, 
from  and  against  all  loss,  damages,  costs,  charges,  counsel  fees 
and  expenses  whatsoever,  which  said  S.  Company  shall  or  may  for 
any  cause,  at  any  time,  sustain  or  incur,  by  reason  or  in  conse- 
quence of  said  S.  Company  having  become  surety  for  R.  A.  on 
B.  certain  bond  for  the  sum  of  one  hundred  thousand  dollars 
($100,000),  which  bond  is  conditioned  that  said  A.  A.,  his  i\cws, 
executors,  administrators  and  assigns,  shall  well  and  truly  and  in 
4.  satisfactory  manner  fulfill  and  perform  the  stipulations,  cove- 
nants and  agreements  of  a  certain  contract  entered  into  by  said 
R.  A.  with  the  United  States  of  America  represented  by  Major 
W.  H.  H.,  Corps  of  Engineers,  U.  S.  Army,  for  removing  certain 
rocks  in  San  Francisco  Bay,  California,  and  shall  promptly  make 
pay,.nents  to  all  persons  supplying  him  labor  or  materials  in  the 
prosecution  of  the  work  provided  for  in  the  said  contract. 

And  you  are  hereby  notified  that  on  or  about  the  ist  day  of 
OctohjfT,  igo4,  the  United  States  of  America,  in  the  relation  of 
and  fo.*  the  use  and  benefit  of  W.  W.  M.  and  Company,  com- 
menced lin  action  in  the  Circuit  Court  of  the  United  States,  Ninth 
Circuit,  Northern  District  of  California,  against  the  said  R.  A. 
and  the  dndersigned,  the  said  A.  S.  Company  upon  said  above- 
mentioned  bond.  A  copy  of  the  summons  and  complaint  in  said 
action  is  fierewith  handed  you.  The  summons  and  complaint 
were  serveJ  upon  the  undersigned,  A.  S.  Company,  on  the  3th 
day  of  October,  1^04. 

And  you  <tre  hereby  further  notified  to  take  such  action  in  de- 
fending said  suit,  or  appearing  therein,  as  you  may  be  advised 
to  be  necessary  in  the  premises. 

The  undersigned  will  be  pleased  to  have  either  you  or  your 
attorneys  consult  with  Mr.  C.  A.,  1200  S.  St.,  San  Francisco, 
California,  con^jerning  said  suit 


No.   13,^8. — Notice — Executor,   Suspension  of. 

[Title  of  Court  and  Cause.] 

To  A.  B.,  Exectrtor  of  the  Will  of  E.  F.,  Deceased : 

You  are  hereby  notified  that  on  the  jtf  day  of  June,  igo6,  it 
appearing  to  the  judge  of  this  court  from  credible  information 


Notice.  765 

that  you,  as  said  executor,  have  mismanaged  the  property  of  said 
estate,  he  has,  for  that  reason,  so  made  an  order  suspending  you 
from  your  powers  as  executor  until  the  matter  is  investigated, 
and  such  order  has  been  entered  upon  the  minutes  of  said  court. 

NOTE. — California,  C.  C.  P.,  sees.  1437-1439;  Arizona,  C.  C,  pars. 
1706-17U8;  Idaho,  C.  C.  P.,  sees.  4100-4102;  Montana,  C.  C.  P.,  sees.  2.J41- 
2543;  Nevada,  Comp.  Laws,  sees.  3028-3030;  Nortli  Dakota,  Probate  Code, 
bees.  6362-6371;  South  Dakota,  Probate  Code,  sees.  133-137,  343;  Wash- 
ington, Ballinger'a  Codes,  sees,  6168-6170;  "Wyoming,  Kev.  Stats.,  sees. 
4623-4625. 

No.  1329. — Notice — Postponement  of  Sale. 
[Title  of  Court  and  Cause.] 

Notice  is  hereby  given  that  the  sale  above  referred  to  was  this 
day  by  me  postponed  until  Saturday,  June  2,  190^,  when  it  will 
take  place  as  above  stated. 

(All  courts.) 

[/n  this  form  the  notice  is  attached  to  the  original  notice  of 
sale.'\ 

NOTK— California,  C.  C.  P.,  sec.  694.     See  Nos.  1306-1309. 

No.  1330. — Notice — Time  and  Place  Where  Assessment  "Will 
be  Made — Inheritance  Tax. 

[Title  of  Court  and  Estate.] 

Please  take  notice,  that  by  authority  of  an  order  made  in  the 
matter  of  said  estate,  the  undersigned  was  appointed  appraiser  to 
appraise  property  described  in  the  inventory  and  appraisement  in 
the  above-named  estate,  subject  to  the  payment  of  the  tax  im- 
posed by  the  laws  of  the  state  of  California  to  establish  a  tax  on 
gifts,  legacies,  inheritances,  bequests,  devises,  successions  and 
transfers.  In  obedience  to  said  order,  I  will,  on  the  loth  day  of 
August,  A.  D.  1905,  at  10  o'clock  A.  M.  of  said  day,  at  Room  No. 
10,  IJ28  7th  street,  Oakland,  in  the  county  of  Alameda,  proceed 
to  appraise  all  of  the  property  in  said  estate  subject  to  said  tax. 

NOTE.— Act  of  March  20,  1905,  p.  341,  sec.  14. 


No.      1331- — Notice — Treasurer — District       Attorney — Inher- 
itance Tax. 

[Title  of  Court  and  Cause.] 

To  A.  B.  C,  Esq,  district  Attorney  of  the  county  of  Butte,  Cali- 
fornia : 
Please  take  notice  that  in  the  above-entitled  matter,  I  have  rea- 
son to  believe  that  £.  F.  C,  who  is  interested  in  tlie  property  liable 


766  New  Book  of  Forms. 

to  an  inheritance  tax,  which  is  a  lien  upon  all  the  real  estate  be- 
longing to  said  estate,  has  neglected  to  pay  said  tax,  and  said  tax 
remains  unpaid. 

This  notice  is  given  under  provisions  of  the  act  of  March  20, 
jpo^,  Stats.,  page  341,  sees.   18  and  26. 

NOTE.— Act  of  March  20,  1905,  Stats.,  p.  341,  sec.  18. 


No.  1332. — Notice — Trust  Company  to  County  Treasurer — In- 
heritance Tax, 

[Title  of  Court  and  Estate.] 

To  A.  B.,  Treasurer  of  the  City  and  County  of  San  Francisco, 
State  of  California: 
Please  take  notice,  that  the  undersigned,  the  A.  B.  C.  D.  Trust 
and  Widow  and  Orphan's  Estates  Guarding  Company,  a  corpora- 
tion, have  on  deposit  the  following  books,  stocks,  and  securities, 
deposits  belonging  to  the  estate  of  the  said  O.  F.,  deceased,  of  the 
total  value  of  $30,000,  which  we  hold  in  confidential  and  secret 
trust  under  instructions  to  deliver  to  his  widow  ten  days  after 
his  death.  We  are  informed  by  our  attorney  that  it  is  our  duty 
to  notify  you  that  we  propose  to  deliver  said  property  to  said 
widovi'  at  our  office  on  June  j,  ipo^,  at  p  o'clock  A.  M. 

NOTE.— Act  of  March  20,  1905,  Stats.,  p.  341,  see.  13. 


ORDERS. 


No.  1333. — Order — Appraiser,    Appointing — Inheritance   Tax. 
[Title  of  Court  and  Estate.] 

A.  B.  C,  having  filed  herein  a  petition  praying  for  the  appoint- 
ment of  an  appraiser  under  and  pursuant  to  the  laws  of  the  state 
of  California  to  establish  a  tax  on  gifts,  legacies,  inheritances, 
bequests,  devises,  successions  and  transfer  and  sufficient  cause 
appearing  therefor — 

It  is  ordered,  that  /.  S.,  Esq.,  be  and  he  is  hereby  appointed 
such  appraiser. 

- .  is  further  ori'ered,  that  he,  as  appraiser,  give  ten  days'  no- 
tice by  mail  to  all  persons  known  to  have  or  claim  an  interest  in 
the  property  belonging  to  said  estate  subject  to  the  above-men- 
tioned tax,  of  the  time  and  place  at  which  he  will  appraise  the 
property  as  described  in  said  petition. 


OliDERS.  76.r 

It  is  further  ordered,  that  the  said  appraiser  ^z'e  notice  of 
his  appointment  and  of  the  time  and  place  at  which  he  'will  ap- 
praise said  property  to  J.  C.  R.,  the  executor  of  the  will  of  said 
deceased;  also  to  H.  G.,  ivho  claims  to  ozvn  said  property  by 
virtue  of  an  unrecorded  conveyance  from  said  deceased. 

NOTE.— Act  of  March  25,  1905,  Stats.,  p.  311,  sec.  14. 


No.   1334. — Order — Arrest — Insane   Person. 
[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

The  People  of  the  State  of  California,  to  the  Sheriff  or  any  Con- 
stable or  Policeman,  of  said  City  and  County. 
A  complaint,  under  oath,  having  this  day  been  made  before 
me,  setting  forth  that  a  person  by  the  name  of  R.  R.,  by  reason 
of  insanity,  is  dangerous  to  be  at  large,  you  are  therefore  com- 
manded, forthwith,  to  arrest  the  above-named  R.  R.,  and  bring 
him  before  me,  at  the  courtroom  of  the  said  superior  court,  at  the 
City  Hall,  in  said  city  and  county  of  San  Francisco,  on  Monday, 
the  tzi'enty-ninth  day  of  March,  igo6,  at  ten  o'clock  A.  M.  of 
said  day. 

NOTE.— California,  Pol.  C,  sec.  2139;  Arizona,  C.  C,  pars.  2768-2773; 
Idaho,  Pol.  C,  sec.  406;  Montana,  Pol.  C,  sees.  2300-2311;  Nevada, 
Comp.  Laws,  sees.  4423-4427,  4536-4545;  New  Mexico,  Comp.  Laws,  sees. 
1923-1925;  North  Dakota,  C.  C,  sec.  1518;  Oregon,  C!odcs  and  Statutes, 
sec.  3C20;  South  Dakota,  Pen.  C,  sec.  19;  Utah,  Eov.  Stats.,  sees.  2171- 
2181;  Washington,  Ballinger's  Codes,  sees.  2660-2663;  Wyoming,  Rev. 
Stats.,  sees.  3476,  4880;  Colorado,  Mill's  Stats.,  sec.  2962. 

No.   1335. — Order — Arrest  by   Sureties. 
[Title  of  Court  and  Cause.] 

You  will  please  take  notice,  that  the  undersigned,  the  sureties 
on  the  bail  of  defendant  on  his  release  from  arrest,  as  appears 
from  the  undertaking,  of  which  the  within  is  a  certified  copy, 
command  you  to  forthwith  arrest  the  within  named  defendant 
and  detain  him  in  your    custody  until  he  is  discharged  by  law. 

(Dated  and  signed  by  the  sureties.) 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sees.  488,  489;  Alaska  Codes,  pt.  4.  c.  12, 
sec.  103;  Idaho,  C.  C.  P.,  sec.  3254;  Montana,  C.  C.  P.,  sec.  810;  Nevada, 
Comp.  Laws,  sees.  3169-3172;  North  Dakota,  C.  C.  P.,  sec.  5313;  Oregon, 
Codes  and  Statutes,  sec.  264;  South  Dakota,  C.  C.  P.,  sec.  166;  Utah,  K(  v. 
Stats.,  sees.  3019,  3020;  Washington.  Ballinger's  Codes,  sees.  5474,  5475; 
Wyoming,  Rev.  Stats.,  sees.  3979,  3980. 


768  New  Book  of  Forms. 


No.  1336. — Order — Arrest — Civil  Cases. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California,  to  the  Sheriff  of  the  City 
and  County  of  San  Francisco: 
The  above-named  plaintiff  having  commenced  an  action  in 
the  superior  court  of  the  city  and  county  of  San  Francisco,  state 
of  California,  against  the  above-named  defendant,  and  it  duly  ap- 
pearing to  me,  from  affidavit  submitted  on  the  part  of  the  said 
plaintiff,  that  a  sufficient  cause  of  action  exists,  and  that  the  case 
is  one  wherein  the  defendant's  arrest  should  be  ordered ;  and  the 
necessary  undertaking  having  been  given,  I,  the  undersigned, 
judge  of  the  said  superior  court,  by  virtue  of  the  authority  in  me 
vested  by  law,  do  order  and  require  you,  the  said  sheriff  of  the 
city  and  county  of  San  Francisco,  forthwith  to  arrest  the  said  de- 
fendant, if  he  may  be  found  in  your  county,  and  hold  him  to  bail 
in  said  action  in  the  sum  of  $2,i§o,  and  that  you  return  this  or- 
der, with  your  proceedings  thereon,  to  the  clerk  of  the  said  su- 
perior court  on  the  twentieth  day  of  Jtme,  ipo6. 

NOTE. — In  California  the  defendant  may  be  arrested:  1.  In  an  action 
for  the  recovery  of  money  or  damages  on  a  cause  of  action  arising  upon 
contract,  express  or  implied,  when  the  defendant  is  about  to  depart  from 
the  state  with  intent  to  defraud  his  creditors;  2.  In  an  action  for  a  fine 
or  penalty,  or  for  money  or  property  embezzled,  or  fraudulently  mis- 
applied, or  converted,  to  his  own  use,  by  a  public  officer,  or  an  officer  of  a 
corporation,  or  an  attorney,  factor,  broker,  agent,  or  clerk,  in  the  course 
of  his  employment  as  such  or  by  any  other  person  in  a  fiduciary  capacity; 
or  for  misconduct  or  neglect  in  office,  or  in  a  professional  employment,  or 
for  a  willful  violation  of  duty;  3.  In  an  action  to  recover  the  possession 
of  personal  property  unjustly  detained,  when  the  property,  or  any  part 
thereof,  has  been  concealed,  removed,  or  disposed  of,  to  prevent  its  being 
found  or  taken  by  the  sheriff;  4.  When  the  defendant  has  been  guilty  of 
a  fraud  in  contracting  the  debt  or  incurring  the  obligation  for  which  the 
action  is  brought;  or  in  concealing  or  disposing  of  the  property  for  the 
taking,  detention,  or  conversion  of  which  the  action  is  brought;  5.  When 
the  defendant  has  removed  or  disposed  of  his  property,  or  is  about  to  do 
BO,  with  intent  to  defraud  his  creditors.  An  order  for  the  arrest  of  the 
defendant  must  be  obtained  from  the  judge  of  the  court  in  which  the 
action  is  brought.  The  order  may  be  ma4e  whenever  it  appears  to  the 
judge,  by  affidavit,  that  a  sufficient  cause  of  action  exists,  and  that  the 
case  is  one  of  those  mentioned  above.  The  affidavit  must  be  either 
positive,  or  upon  information  and  belief;  and  when  upon  information  and 
belief,  it  must  state  the  facts  upon  which  the  information  and  belief 
are  founded:  Cal.  C.  C.  P.,  sees.  479-481.  See  Affidavits;  Alaska, 
Codes,  pt.  4,  c.  12,  sec.  100;  Idaho,  C.  C.  P.,  sec.  3246;  Montana,  C.  C.  P., 
eec.  802;  Nevada,  Comp.  Laws,  sees.  3169-3172;  North  Dakota,  C.  C.  P., 
sec.  5308;  South  Dakota,  C.  C.  P.,  sees.  160,  161;  Utah,  Rev.  Stats.,  sees. 
3011,  3012;  Washington,  Ballinger'a  Codes,  sees.  5464-5467;  Wyoming, 
Eev.  Stats.,  Bees,  3958-3987. 


Orders.  769 

No.    1337. — Order — Assistance,    Writ    of. 

[Title  of  Court  and  Cause.] 

On  reading  and  filing  the  affidavit  of  /.  IV.,  setting  forth  that 
he  was  the  purchaser  of  the  premises  described  in  the  comphunt 
herein;  that  he  has  presented  to  the  defendant,  R.  R.,  the  sherilY's 
deed  for  said  property,  and  demanded  possession  thereof,  and 
that  said  defendant  has  refused  to  deliver  to  him  possession  of 
said  premises ;  and  it  appearing  that  due  notice  has  been  given 
of  this  motion  of  S.  &  B.,  the  attorneys  of  said  defendant :  Now, 
on  motion  of  S.  &  S.,  attorneys  of  said  /.  ly.,  it  is  ordered  that 
a  writ  of  assistance  issue  to  the  sheriff  of  San  Mateo  county,  to 
put  the  said  /.  IV.,  in  possession  of  the  said  premises,  and  him  in 
the  possession  thereof,  from  time  to  time,  to  maintain  and  defend. 

NOTE.— California,  C.  C.  P.,  sees.  1210-1254;  Arizona,  C.  C,  par.  3281; 
Idaho,  C.  C.  P.,  sec.  316S;  Montana,  C.  C.  P.,  sec.  582;  New  Mexico,  Comp. 
Laws,  sec.  3352;  Utah,  Rev.  Stats.,  sec.  2915;  Wyoming,  Kev.  Stats.,  sec. 
4119;  Colorado,  Mill's  Stats.,  sec.  1994. 

No.  1338. — Order  Directing  a  Surviving  Partner  to  Render  an 

Account. 

[Title  of  Court  and  Estate.] 

Upon  the  application  of  /.  C,  the  executor  of  the  will  of  S.  D., 
deceased,  it  is  ordered  that  H.  M.  and  C.  B.,  surviving  partners 
of  S.  D.,  deceased,  render  an  account  of  the  partnership  exist- 
ing at  the  time  of  the  death  of  said  deceased,  and  said  H.  M.  and 
C.  B.  in  farming  K.  R.  ranch  in  M.  County,  California.  Said  ac- 
count to  be  rendered  and  served  upon  said  executor  on  or  before 
June  3,  ipo6. 

NOTE. — Such  order  may  be  made  by  the  court  whenever  it  appears 
to  be  necessary;  and,  in  case  of  neglect  to  do  so,  it  may,  after  notice, 
compel  obedience  by  attachment — that  is  to  say,  by  contempt  proceed- 
ings based  upon  order  to  account:  Cal.  C.  C.  P.,  sec.  1585;  Arizona,  C.  C, 
par.  1829;  Idaho,  C.  C.  P.,  sec.  4216;  Montana,  C.  C.  P.,  sec.  2734;  Nevada, 
Comp.  Laws,  sec.  2954;  North  Dakota,  Probate  Code,  sec.  6377;  Oregon, 
Codis  and  Statutes,  sees.  1130,  1132;  South  Dakota,  Probate  Code,  soc. 
246;  Utah,  Eev.  Stats.,  sec.  3918;  Washington,  Ballinger's  Codes,  sees. 
6190-6192. 

No.  1339. — Order  Directing  Further  Notice  upon  Settlement 

of  Account. 

[Title  of  Court  and  Estate.] 

It  appearing  to  the  court  that  the  notice  given  upon  the  final 
account  of  the  administrator  was  insufhcicnt,  it  is  ordered  Uiat 
New  Forms — 49 


770  New  Book  op  Forms. 

further  notice  be  given  by  posting  the  notice  of  settlement  in 
three  of  the  most  pubHc  places  in  the  said  city  and  county  for 
thirty  days  commencing  June  ?,  IQ06,  and  by  publishing  an  ab- 
breviation of  said  notice  as  follows : 

"Notice. — The  hearing  of  the  final  account  of  the  administrator 
of  the  estate  of  A.  B.,  deceased,  will  be  heard  on  July  10,  1906, 
suf^erior  court,  department  Q,  10  o'clock  A.  M." 

And  it  is  further  ordered  that  said  abbreviated  notice  be  pub- 
lished on  the  5th  of  June,  1906,  in  the  C,  on  the  loth  in  the  £., 
on  the  15th  in  the  B.,  on  the  i8th  in  the  R.,  and  on  the  jo/Zi  in 
all  said  papers. 

XOTE. — If  a  court  or  judge  deems  the  notice  of  final  settlement  in- 
Bufiieient,  he  may  order  such  further  notice  as  may  to  him  seem  proper: 
Cal.  C.  C.  P.,  sec.  1633;  Arizona,  C.  C,  par.  1867;  Idaho,  C.  C.  P., 
sec.  4253;  Montana,  C.  C.  P.,  sec.  2791;  Nevada,  Comp.  Laws,  sec.  2973  j 
Oregon,  Codes  and  Statutes,  sec.  1202;  South  Dakota,  Probate  Code,  sec. 
283;  Utah,  Rev.  Stats.,  sec.  3942;  Washington,  Ballinger's  Codes,  sec. 
6327;  Wyoming,  Eev.  Stats.,  sec.  4722, 


No.   1340. — Order — Account — Referee     Appointed    to     Settle 

[Title  of  Court  and  Estate.] 

M.  J.,  the  administratrix  of  the  estate  of  T.  J.,  deceased,  hav- 
ing on  the  sixteenth  day  of  June,  ipo6,  rendered  her  annual  ac- 
count of  settlement,  and  notice  of  such  settlement  having  been 
duly  given  for  this  day,  as  ordered  by  this  court  [if  the  guardian 
ad  litem,  or  any  person  interested  in  the  estate,  has  Hied  excep- 
tions to  the  account,  state  that  fact  here,  thus:  And  J.  F.  P., 
Bsq.,  appointed  by  this  court  to  represent  W.  J.,  C.  J.,  and  B.  J., 
minors  interested  in  the  said  estate,  upon  the  settlement  of  said 
account — or,  the  party  opposing — having  appeared  and  Hied  ex- 
ceptions thereto^  : 

It  is  hereby  ordered,  that  G.  B.  M.,  Esq.,  be,  and  he  is  hereby, 
appointed  a  referee  to  examine  the  said  account  and  make  re- 
port thereon  to  this  court  within  two  weeks,  and  that  the  settle- 
ment of  said  account  be  adjourned  until  Monday,  the  eleventh 
day  of  July,  190 f,,  at  eleven  o'clock  A.  M. 

NOTE. — In  California  all  matters  including  allowed  claims  not  passed 
upon  on  the  settlement  of  any  former  account,  or  on  rendering  an  ex- 
hibit, or  on  making  a  decree  of  sale,  may  be  contested  by  the  heirs,  for 
cause  shown.  The  hearing  and  allegations  of  the  respective  parties  mav 
be  postponed  from  time  to  time,  when  necessary,  and  the  court  may 
appoint  one  or  more  referees  to  examine  the  accounts  and  make  repo: : 
thereon,  subject  to  confirmation;  and  may  allow  a  reasonable  compensa- 
tion to  the  referees,  to  be  paid  out  of  the  estate  of  the  decedent:   Cal. 


Orders.  771 

'C.  C.  P.,  8e«.  1636;  Alaska,  Codes,  pt.  4,  c.  86,  sees.  859,  862-871;  Arizona, 
C.  C,  par.  1870;  Jdaho,  C.  C.  P.,  sec.  42.^6;  Montana,  C.  C.  P.,  sec.  2794; 
Nevada,  Corap.  Laws,  sec.  2992;  New  Mexico,  Comp.  Laws,  sec.  200.'5; 
North  Dakota,  Probate  Code,  sees.  6412,  G413;  South  Dakota,  Probate 
Code,  sec.  286;  Utah,  Rev.  Stats.,  sec.  3947;  Washington,  Ballingcr's 
Codes,  sec.  6330;  Wyoming,  Eev.  Stats.,  sec.  4724. 


No.  1341. — Order — Account  to  be  Settled,  Notice  of. 
[Title  of  Court  and  Estate.] 

M.  /.,  the  administratrix  of  the  estate  of  T.  /.,  deceased,  hav- 
ing this  day  rendered  and  presented  for  settlement,  and  filed  in 
this  court  her  first  annual  account  of  her  administration  of  es- 
tate of  said  deceased: 

It  is  ordered,  that  Monday,  the  tzventy-sevcnth  day  of  June, 
IQ06,  at  II  o'clock  A.  M.,  be,  and  the  same  is  hereby,  appointed 
for  the  settlement  of  the  said  account;  and  that  the  clerk  give 
notice  thereof,  by  causing  notices  to  be  posted  in  at  least  three 
public  places  in  this  city  and  county,  at  least  ten  days  before  said 
day  of  settlement,  according  to  law. 

NOTE.— California,  C.  C.  P.,  see.  1633.  The  clerk  set  the  account  for 
hearing  without  an  order  to  do  so.  The  above  order  is  upon  the  ground 
that  the  court  deems  the  notice  given  bv  the  clerk  is  insufficient:  Alaska, 
Codes,  pt.  4,  c.  86,  sees.  862-871;  Arizona,  C.  C,  par.  1867;  Idaho,  C.  C. 
P.,  sec.  4253;  Montana,  C.  C.  P.,  sec.  2791;  Nevada,  Comp.  Laws,  sec. 
2973;  New  Mexico,  Comp.  Laws,  sec.  2005;  North  Dakota,  Probate  Code, 
sec.  6496;  Oregon,  Codes  and  Statutes,  sec.  1202;  South  Dakota,  Probate 
Code,  sec.  283;  Utah,  Rev.  Stats.,  sec.  2942;  Washington,  Ballinger'a 
Codes,  sec.  6327;   Wyoming,  Rev.  Stats.,  sec.  4722. 


No.  1342. — Order  Directing  Executor    to  Pay    Legatee    His 
Share  of  an  Estate. 

[Title  of  Court  and  Estate.] 

The  petition  of  A.  B.  for  an  order  directing  /.  C.  R.,  the  ex- 
ecutor of  the  last  v^ill  of  S.  D.,  deceased,  to  pay  him  the  legacy 
of  $10,000  given  him  by  said  will,  coming  on  this  day  to  be  heard, 
and  the  matter  having  been  submitted  for  decision,  it  is  ordered 
that  /.  C.  R.,  the  executor  of  said  will,  pay  said  A.  B.  $10,000  in 
full  of  his  legacy  upon  the  delivery  to  him,  said  executor,  of  a 
bond  in  the  sum  of  $1,000  with  sureties  to  be  approved  by  the 
judge  of  this  court,  conditioned  for  the  payment,  whenever  re- 
quired, of  his  proportion  of  the  debts  due  from  the  estate,  not 
exceeding  the  amount  of  the  said  legacy. 

NOTE. — As  a  matter  of  course,  a  $1,000  bond  upon  receipt  of  a  $10,000 
legacy  is  improbable,  unless  the  court  and  executor  are  certain  that  there 
ia  no  danger  of  there  being  a  mistake  made:   Cal.  C.  CL  P.,  sees.   1&58- 


"^'2  New  Book  oi^  Forms. 

1661;  Ari70Tia.  C.  C,  pr.r.  1886;  Idaho,  C.  C.  P.,  sec.  4270;  Montana,  C.  C. 
P.,  sec.  2SoO;  Nevada,  Comp.  Laws,  see."  2993;  North  Dakota,  Probate 
Code,  sec.  6426;  Oregon,  Codes  and  Statutes,  sec.  1222;  South  Dakota, 
Probate  Code,  sec.  299;  Utah,  P.ev.  Stats.,  see.  3948,  Laws  1901,  p.  181; 
Washington,  Ballinger's  Codes,  sec.  6347 j  Wyoming,  Eev.  Stats.,  sec. 
4826. 


No.   1343. — Order  Directing  Executor    to  Invest    Moneys    in 
His  Bonds — Securities  of  the  State  of  California. 

[Title  of  Court  and  Estate.] 

It  appearing  to  the  court  upon  the  hearing  of  the  petition  of 
A.  B.,  the  widow  of  the  said  C.  B.,  deceased,  that  the  executor  of 
the  last  will  of  said  deceased  has,  in  his  possession,  $100,000  in 
gold  coin  of  the  United  States,  which  money  is  on  general  deposit 
with  The  People's  Home  Bank,  without  interest,  and  it  being  for 
the  best  interests  of  said  estate  that  said  money  be  invested  in 
good  securities,  it  is  ordered  that  said  executor  purchase  in  open 
market,  at  a  price  not  above  par,  100  Indian  War  Bonds  issued 
by  the  state  of  California,  under  the  act  of  May  s,  1S52. 

NOTE. — Pending  the  settlement  of  estates,  a  court  may,  on  the  peti- 
tion of  an  interested  party,  make  such  order:  Cal.,  C.  C.  P.,  sec.  1640; 
Arizona,  C.  C,  par.  1874;  Idaho,  C.  C.  P.,  sec.  4223;  Montana,  C.  C.  P., 
sec.  2798;  North  Dakota,  Probate  Code,  sec.  6503;  South  Dakota,  Probate 
Code,  sec.  290;  Utah,  Eev.  Stats.,  see.  3925. 

Mo.  1344. — Order  Directing  Publication  Notice  of  Application 
for  Order  Directing  Executor  to  Invest  Moneys  of  an  Es- 
tate. 

[Title  of  Court  and  Estate.] 

It  is  ordered  that  the  clerk  of  this  court  give  notice  by  publica- 
tion in  the  ''R."  once  a  week  for  two  weeks,  to  all  interested  per- 
sons to  show  cause  before  the  court  on  Friday,  June  j,  igoS,  at 
JO  o'clock  A.  M.,  why  the  executor  of  the  last  will  of  C.  B.,  de- 
ceased, should  not  invest  $100,000  of  the  moneys  of  said  estate  in 
securities  of  the  United  States  or  of  the  state  of  California. 

NOTE.— California,  C.  C.  P.,  sec.  1640;  Arizona,  C.  C,  par.  1874; 
Idaho,  C.  C.  P.,  sec.  4223;  Montana,  C.  C.  P.,  sec.  2798;  North  Dakota, 
Probate  Code,  see.  6503;  South  Dakota,  Probate  Code,  sec.  290;  Utah, 
Eev.  Stats.,  see.  3925. 

No.    1345 — Order  Approving   of   Adminisrator's    Payment   of 
Debt  Without  Creditor's  Affidavit. 

[Title  of  Court  and  Estate.] 

It  appearing  to  the  court  that  A.  B.,  the  administrator  of  this 
estate,  paid  C.  D.  a  claim  of  $3,727.^0,  within  the  time  limited  by 


OkdErs. 


//J 


law  for  the  payment  of  such  claims,  but  without  the  afTiflavit  or 
other  proof  of  said  claim  required  by  law,  and  it  having  been 
proven  by  competent  evidence,  to  the  satisfaction  of  the  court, 
that  said  amount  was  a  just  debt,  and  was  due  against  the  said 
estate,  and  was  paid  in  good  faith,  that  said  amount  was  the  true 
amount  of  such  indebtedness  over  and  above  all  payments  or  set- 
offs, and  the  said  estate  being  solvent,  the  said  amount  is  allowed 
the  said  administrator  in  the  settlement  of  his  accounts. 

NOTE. — Under  such  circumstances  *'it  is  the  duty'*  of  the  court  to 
allow  the  claim.  It  must  be  shown  "that  such  drbts  were  justly  due; 
were  paid  in  good  faith;  that  the  amount  paid  was  the  true  amount  of 
such  iuik'btedncss,  o\  er  and  above  all  payments,  at  setoffs,"  and  the 
estate  is  solvent:  Cal.  C.  C.  P.,  sec.  1632. 

The  difference  between  the  statutory  affidavit  to  creditor's  claims 
(Id.,  sec.  1494),  and  the  proof  necessary  to  acquit  an  administrator  if 
he  Ijas  paid  such  claim  under  Id.,  sec.  1632,  is  marked:  Alaska,  Codes, 
pt.  4,  c.  84,  sees.  820-829;  Arizona,  C.  C,  par.  1866;  Idaho,  C.  C.  P.,  sec. 
42.52;  Montana,  C.  C.  P.,  sec.  2700;  North  Dakota.  Probate  Code,  sec. 
6403;  Utah,  Eev.  Stats.,  sec.  3944;  Washington,  Balliugcr's  Codes,  sec. 
6325. 


No.   1346. — Order  Directing  Admmistrator  to  Execute   Con- 
veyance and  Possession  Surrendered, 

[Title  of  Court  and  Estate,] 

[The  scvie  as  in  the  order  directing  conveyance;  then  continue 
iis  follozcs:] 

And  it  is  further  ordered  that  said  administrator,  without  any 
delay,  execute  and  deliver  said  conveyance  and  surrender  the  pos- 
session of  said  property  to  said  petitioner ;  and  it  is  also  ordered 
that  all  persons  in  possession  of  said  property  holding  under  said 
administrator  surrender  the  same  to  said  petitioner  upon  the  pro- 
duction of  the  deed  of  said  administrator  executed  by  direction 
of  this  order,  and  a  certified  copy  of  this  order, 

NOTE. — California,  C,  C.  P.,  sec.  1607;  Arizona,  C.  C^  par.  1846; 
Idaho,  C.  C.  P.,  sec.  4234;  Montana,  C.  C.  P.,  sec.  2760;  North  Dakota, 
Probate   Code,  sees.  6456-6459;   Utah,  Eev.  Stats.,  see.   3940, 


No,    1347. — Order  Denying  Petition  for   an   Order  Directing 
Administrator  to  Convey  Land. 

[Title  of  Court  and  Estate.] 

The  petition  of  A.  B.  for  an  order  directing  the  administrator  of 
the  estate  of  E.  F.,  deceased,  to  convey  to  him  the  land  described 
in  his  petition,  having  been  heard  and  submitted  for  judgment, 
and  it  being  doubtful  that  the  petitioner  has  the  right  to  demand 


774  New  Book  of  Forms. 

specific  performnnce  of  the  contract  described  in  his  petition,  it 
is  ordered  that  his  petition  be,  and  it  is,  denied. 

NOTE. — If,  in  the  opinion  of  the  court,  the  right  of  the  petitioner  to 
have  a  specific  pcrfornianee  of  the  contract  is  doubtful  the  petition  must 
be  denied.  In  such  case  action  for  specific  performance  of  the  contract 
may  be  brought  within  six  months:  Cal.  C.  C.  P.,  see.  1602;  Arizona, 
C.  C,  par.  18-il;  Idaho,  C.  C.  P.,  sec.  4229;  Montana,  C.  C.  P.,  sec.  2755; 
North  Dakota,  Probate  Code,  sees.  6456-6459;  South  Dakota,  Probate 
Code,  sees.  254-264;  Utah,  Bev.  Stats.,  sec.  3938;  Wyoming,  Eev.  Stats., 
sec.  4822. 


No.  1348. — Order  Approving  an  Administrator's  Agreement  to 
Compound  With  a  Debtor. 

[Title  of  Court  and  Estate.] 

A.  B.,  the  administrator  of  the  estate  of  C.  D.,  deceased,  hav- 
ing accepted  a  payment  of  $600  in  satisfaction  of  a  debt  of  $Sr 
7^5-50,  owing  by  B.  F.  to  said  estate,  which  debt  was  appraised  at 
$3,7^5-50  in  the  inventory  and  appraisement  on  file  in  said  es- 
tate ;  and  it  appearing  to  the  court  that  said  E.  F.  is  insolvent,  and 
that  he  has  assigned  all  his  property  to  the  sheriff  of  the  county  of 
Nevada  for  the  benefit  of  all  his  creditors,  and  that  said  assign- 
ment was  made  in  manner  and  form  as  is  by  law  required,  and  it 
appearing  that  all  the  creditors  of  the  said  B.  F.,  have  agreed  to 
accept  the  same  proposition  of  their  demand,  it  is  hereby  ordered 
that  the  said  A.  B.,  as  administrator,  aforesaid,  give  the  said  B.  F. 
a  discharge  of  said  debt. 

NOTE. — Such  order  may  be  made  at  any  time  when  it  appears  to 
be  just,  and  for  the  best  interests  of  the  estate:  Cal.  C.  C.  P.,  sec.  15S8; 
Arizona,  C.  C,  par.  1832;  Idaho,  C.  C.  P.,  sec.  4219;  Montana,  C.  C.  P., 
sec.  2737;  Nevada,  Comp.  Laws,  see.  2957;  North  Dakota,  Probate  Code, 
sec.  6477;  Oregon,  Codes  and  Statutes,  sec.  1211;  South  Dakota,  Probate 
Code,  sec.  249;  Utah,  Rev.  Stats.,  sec.  3921;  Washington,  Balliugur's 
Codes,  sec.  6301;  Wyoming,  Eev.  Stats.,  sec.  4702. 


No.  1349. — Order  Directing  Administrator  to  Execute  Lease. 

[Title  of  Court  and  Estate.] 

The  matter  of  the  petition  of  the  administratrix  of  the  estate  of 
C.  D.,  deceased,  coming  on  this  day  to  be  heard,  it  is  ordered  that 
she  execute  a  written  lease  of  the  premises  described  in  her  peti- 
tion to  G.  H.  for  five  years  from  the  date  of  the  lease,  for  the  min- 
imum sum  of  $12,000,  gold  coin  of  the  United  States,  to  be  paid  in 
60  equal  installments  of  $200,  to  be  paid  on  the  first  day  of  each 


Orders.  775 

month  during  said  term.  Said  lease  not  to  be  sublet,  assigned  or 
surrendered,  without  an  order  of  this  court  until  distribution  is 
made  of  the  property  described  in  the  lease. 

NOTE. — The  order  may  prescribe  the  minimum  rental  to  be  received 
for  the  premisca,  and  the  period  of  the  lease  which  in  no  case  must  be 
longer  than  for  five  years,  and  the  court  may  prescribe  other  terms  and 
conditions  of  such  lease:  Cal.,  C.  C.  P.,  sec.  1579;  Axizona,  0.  C,  par. 
1824;  New  Mexico,  Comp.  Laws,  sec.  2079. 


No.  1350.— Order  that  Executor  "Without  Bond"  File  a  Bond. 
[Title  of  Court  and  Estate.] 

It  appearing  to  the  court  that  it  is  necessary  for  the  security  of 
those  interested  in  this  estate  that  A.  B.,  the  executor  of  the  will 
of  C.  D.,  deceased,  give  a  bond  for  the  faithful  performance  of  his 
duties  as  executor,  it  is  hereby  ordered  that  A.  B.,  executor  of  the 
will  of  C.  D.,  deceased,  file  in  the  matter  of  said  estate,  a  bond 
to  be  approved  by  the  judge  of  this  court  in  the  sum  of  $70- 
000,  in  form  and  manner  as  is  by  law  required;  and  that  such 
bond  be  presented  for  approval  within  ten  days  from  the  date  of 
this  order.  This  order  is  made  upon  the  motion  of  the  judge  of 
this  court. 

NOTE. — Such  an  order  may  be  made  upon  a  judge's  "own  motion" 
and  applied  to  all  bonds  that  may  be  given  in  probate  matter.  The 
above  order  is  drawn  under  section  139G,  Code  of  Civil  Procedure,  and 
refers  to  an  executor  who  has  been  relieved  by  a  will  from  the  obligatioa 
of  giving  a  bond:  Cal.  C.  C.  P.,  sees.  1394-1402;  Alaska,  Codes,  pt.  4,  c. 
81,  sees.  7S5,  786;  Arizona,  C.  C,  pars.  1673,  1681;  Idaho,  C.  C.  P.,  sees. 
4068,  4076;  Montana,  C.  C.  P.,  sees.  2477,  2485;  Nevada,  Comp.  Laws, 
sees  2843,  2851;  Oregon,  Codes  and  Statutes,  see.  1107;  South  Dakota, 
Probate  Code,  sec.  108;  Utah,  Bev.  Stats.,  sec.  3832;  Washington  Bal- 
linger's  Codes,  sees.  6161,  6103;    Wyoming,  Eev.  Stats.,  sec.  46 /j. 


No.  1351. — Order  that  Application   for  Letters    and    Contest 
for  Letters  Will  be  Heard  Together. 

[Title  of  Court  and  Estate.] 

It  is  ordered  that  the  application  of  A.  B.  for  letters  of  admin- 
istration upon  the  estate  of  E.  F.,  deceased,  and  the  contest  of 
C.  D.  opposing  the  petition  of  A.  B.,  and  the  petition  of  C.  D. 
that  letters  of  administration  be  granted  to  him  upon  said  estate, 
be  set  for  hearing  on  the  3d  day  of  June,  igoo,  at  10  o'clock  A. 
M.,  and  be  heard  together. 

NOTE. — California,  C.  C.  P.,  sec  1374;  Arizona,  C.  C,  par.  16'fi; 
Idaho,  C.  C.  P.,  sec.  4050;  Montana,  C.  C.  P.,  sec.  2443;  Nevada,  Comp. 
Laws.  sec.  2829;  South  Dakota,  Probate  Code,  sec.  89;  Utah,  Eev.  Stats., 
sec.  3819;  Wyoming,  Ecv.  Stats.,  sec.  4649. 


7/5  New  Book  of  Forms. 


No.    1352. — Order    Directing  Letters    of    Administration    to 
Guardian  of  Person  Entitled  to. 

[Title  of  Court  and  Estate.] 

State  of  California, 
County  of  Butte, — ss. 

It  appearing  that  A.  B.  is,  in  order  of  precedence,  entitled  to 
letters  of  administration  upon  the  estate  of  C.  D.,  deceased,  and 
it  also  appearing  that  A.  B.  is  a  minor,  and  that  £.  F.  is  his  duly 
appointed,  qualified  and  acting  guardian  of  the  person  and  estate 
of  A.  B.,  the  said  E.  F.  is  hereby  appointed  administrator  of  the 
estate  of  C.  D.,  deceased. 

NOTE. — In  such  case  letters  may  be  issued  in  the  discretion  of  the 
court:  Cal.  C.  C.  P.,  sec.  1368. 

If  a  minor  is  named  executor  another  person  may  be  substituted 
until  the  majority  of  the  minor:   Id.,  sec.  1354. 

When  such  minor  reaches  his  majority  the  guardian's  letters  may  be 
revoked  and  then  issued  to  the  former  ward:  Id.,  sec.  1383;  Alaska,  Codes, 
pt.  4,  c.  88,  sees.  887-917;  Arizona,  C.  C,  pars.  1641,  1650;  Idaho,  C.  C.  P., 
sees.  4036,  4044;  Montana,  C.  C.  P.,  sees.  2405,  2433;  Nevada,  Comp. 
Laws,  sec.  2817;  North  Dakota,  Probate  Code,  sees.  6213-6219;  Oregon, 
Codes  and  Statutes,  sec.  1117;  South  Dakota,  Probate  Code,  sec.  83; 
Utah,  Eev.  Stats.,  sec.  3803;  Washington,  Ballinger's  Code,  sec.  6127; 
Wyoming,  Kev.  Stats.,  sec.  4632. 


N'o.  1353. — Order  Establishing  the  Fact  that  One  of  Two  Kx- 
ecutors  is  Absent  from  the  State.. 

[Title  of  Court  and  Estate.] 

It  appearing  to  the  court  that  A.  B.,  one  of  the  two  executors 
of  the  last  will  of  C.  D.,  deceased,  was  absent  from  the  state  of 
California  all  the  time  between  July  5,  ipo§,  and  August  6,  ipo6, 
and  it  appearing  to  the  court  that  during  said  period  E.  F.,  the 
other  executor  of  said  last  will  did,  between  said  dates,  manage 
said  estate  and  performed  all  the  acts  of  administrating  said  es- 
tate as  if  he  was  the  only  qualified  executor,  now,  it  is  hereby  ad- 
judged that  all  the  said  acts  of  the  said  E.  F.  have  now,  and  shall 
hereafter  have,  the  same  legal  effect  as  if  the  said  A.  B.  was  pres- 
ent during  said  time  and  joined  with  his  coexecutor  in  all  said 
acts. 

NOTE. — The  reason  for  this  order  is  the  necessity  of  having  a  record 
showing  that  E.  F.  had  authority  to  act  in  the  absence  of  his  coexecutor: 
Cal.,  C.  C.  P.,  sec.  1355.  A  similar  order  would  be  proper  in  case  a 
coexecutor  labors  under  disability:  Arizona,  0.  C,  par.  1642;  Idaho,  C.  Q. 
P.,  sec.  4037;  Montana,  C.  C.  P.,  sec.  2406;  Nevada,  Comp.  Laws,  sec. 
2818;  South  Dakota,  Probate  Code,  sec.  75;  Utali,  Rev.  Stats.,  sec.  3910; 
Washington,  Ballinger's  Codes,  sec.  6133. 


Orders.  'j'j'] 


No.   1354. — Order  Removing  Administrator  After  Contest  of 
His  Account,  or  Statement  Contained  in  It. 

[Title  of  Court  and  Estate.] 

The  administrator  of  this  estate  having  filed  his  first  annual  ac- 
count, and  a  statement  therein  appearing  that  he  had  paid  $?0 
to  the  publisher  of  the  "D.  B.  &  S.  H.,"  for  publishing  notice  to 
creditors,  in  the  matter  of  said  estate,  as  per  voucher  No.  S'^;^, 
and  at  the  hearing  of  said  account  before  this  court,  C.  D.,  one 
of  the  heirs  at  law  of  the  said  deceased,  and  interested  in  said  es- 
tate, contested  said  payment,  and,  at  the  hearing  of  said  contest, 
it  was  established  to  the  satisfaction  of  this  court  that  said  admin- 
istrator paid  in  full  for  said  advertisement  $15,  and  no  more,  and 
has  appropriated  $5  of  said  $20  for  his  personal  uses ;  and  said  $^ 
not  allowed  as  charged  against  said  estate.  Thereafter,  the  said 
administrator  was  cited  to  show  cause  before  this  court  why  his 
letters  should  not  be  revoked,  and  at  the  hearing  of  the  matter 
last  aforesaid  the  said  administrator  appeared  in  person,  and  by 
counsel,  and  admitted  said  appropriation,  but  pleaded  the  custom 
of  the  "trade  of  printers  and  publishers"  of  legal  notices,  in  jus- 
tification, and  said  matter  having  been  submitted  for  judgment,  it 
it  is  hereby  ordered  that  the  letters  of  administration  issued  to 
A.  B.,  as  administrator  of  the  estate  of  B.  F.,  deceased,  be,  and 
they  are  hereby  revoked. 

NOTE. — The  conrt  may  examine  the  execntor  or  administrator,  and  if 
he  has  been  guilty  of  neglect,  or  has  wasted,  embezzled,  or  mismanaged 
the  estate,  his  letters  must  be  revoked:  Cal.,  C.  C.  P.,  sec.  1626. 

A  judge  may,  if  so  minded,  not  wait  for  a  charge  to  be  presented  at 
the  law  in  motinn  "from  his  own  knowledge"  or  "from  credible  in- 
formation": Id.,  sec.  1436. 

The  same  form  may  be  used  when  an  administrator's  clerk  or  other 
agent  accepts  similar  "drawbacks"  with  the  knowledge  of  the  admin- 
istrator; Arizona,  C.  C,  pars.  1705,  18.58;  Idaho,  C.  C.  P.,  sees.  40^0, 
4246;  Montana,  C.  C.  P.,  sees.  2540,  2784;  Nevada,  Comp.  Laws.  sees. 
2026,  2974;  North  Dakota,  Probate  Code,  sees.  6362-6371;  South  Dakota. 
Probate  Code,  sees.  272-290;  Washington,  Ballingcr's  Codes,  sec.  2."19, 
6167;  Oregon,  Codes  and  Statutes,  sec  1203;  Wyoming,  Bev.  Stuts., 
sees,  4622,  4716. 


No.   1355. — Order — Executor — His  Right  Forfeited. 
[Title  of  Court  and  Estate.] 

/.  S.,  the  person  named  by  H.  S.  in  his  last  will  as  executor 
thereof,  having  delayed  more  than  thirty  days  after  the  dei'^'' 
of  said  H.  S.,  and  without  good  cause  for  more  than  tiiirty  d^ys 
after  he  had  knowledge  of  the  death  of  said  H.  S.,  having  n.g- 


7/8  New  Book  of  Forms. 

lected  to  petition  the  court  having  jurisdiction  of  said  estate  for 
letters  testamentary  in  said  estate,  the  said  /.  S.  has  renounced 
his  right  to  said  letters. 

NOTE. — In  California,  if  a  person  knows  that  he  is  named  in  a  will 
as  executor,  and  has  knowledge  of  the  death  of  the  testator,  and  fails  to 
petition  for  the  probate  of  the  will  for  thirty  days  after  he  has  knowl- 
edge of  said  death,  the  court  may  appoint  some  other  person  executor 
unless  good  cause  for  delay  is  shown:  Cal.  C.  C.  P.,  sec.  1301. 

This  order  may  be  made  when  another  person  (the  public  admin- 
istrator), petitions  for  letters,  with  the  will  attached,  and  the  ground  of 
his  application  is  the  neglect  stated  in  the  order.  It  would  be  good 
form  to  insert  the  above  in  the  order  granting  letters:  Alaska  Codes, 
pt.  4,  e.  80,  sees.  772-800;  Arizona,  C.  C,  par.  1603;  Idaho,  C.  C.  P.,  sec. 
3998;  Montana,  C.  C.  P.,  sec.  2323;  New  Mexico,  Comp.  Laws,  sees.  1935- 
1945;  North  Dakota,  Probate  Code,  sec.  6316;  South  Dakota,  Probate 
Code,  sees.  37,  38;  Utah,  Eev.  Stats.,  sec.  3788;  Washington,  Balliuger's 
Codes,  sec.  4574;  Wyoming,  Eev.  Stats.,  see.  4574. 


No.  1356. — Order — Letters  Revoked. 

[Title  of  Court  and  Estate.] 

S.  B.,  the  administrator  of  the  estate  of  H.  S.  W.,  deceased, 
having  neglected  to  file  a  new  bond  within  the  time  ordered  by 
this  court,  it  is  hereby  ordered  that  the  letters  of  administration 
in  said  estate  heretofore  granted  to  the  said  S.  B.,  be,  and  the 
same  are  hereby,  revoked. 

NOTE.— California,  C.  C.  P.,  sees.  1400,  1405.  For  misconduct,  see  Id., 
sees.  1627,  1630.  Failure  to  obey  citation.  Id.,  sees.  1384,  1385.  For  not 
obeying  citation,  Id.,  sec.  1437.  For  contempt,  Id.,  sec.  1721.  For 
failure  to  return  inventory.  Id.,  sec.  1450.  For  not  giving  notice  to 
creditors,  Id.,  sec.  1511.  For  not  returning  sale,  Id.,  sec.  1575.  For 
failure  to  account.  Id.,  sec.  1630.  When  account  shows  neglect  he  may 
be,  Id.,  sec.  1620;  Alaska  Codes,  pt.  4,  e.  80,  sees.  772-800;  Arizona,  C.  C, 
par.  1679;  Idaho,  C.  C.  P.,  sec.  4074;  Montana,  C.  C.  P.,  sec.  2483; 
Nevada,  Comp.  Laws,  sec.  2849;  North  Dakota,  Probate  Code,  sec.  6360; 
Oregon,  Codes  and  Statutes,  sec.  1124;  South  Dakota,  Probate  Code,  see. 
134;  Washington,  BaUinger's  Codes,  sec.  6160;  Wyoming,  Eev.  Stats.,  see. 
4673. 


No.    1357. — Order    Directing   Notice   of    Procedings   for    Re- 
moval of  Executor  to  be  Given  by  Publication  and  Mail. 

[Title  of  Court  and  Estate.] 

It  is  ordered  that  a  citation  issue  directed  to  C.  D.,  executor 
of  the  will  of  B.  P.,  deceased,  commanding  him  to  appear  in  per- 
son or  by  attorney  in  this  court,  on  Friday,  June  j,  ipo6,  at  10 
o'clock  A.  M.,  and  show  cause  why  his  letters  should  not  be  re- 
voked, and  it  is  ordered  that  said  citation  be  published  in  the 
"Recorder,"  a  San  Francisco  paper,  once  a  week,  for  four  weeks. 


Orders.  779 

It  is  also  ordered  that  a  copy  of  said  publication  and  a  certified 
copy  of  the  petition  of  A.  B.,  filed  herein,  be  inclosed  in  a  sealed 
envelope,  directed  to  C.  D.  at  Rochester,  Monroe  county,  state  of 
New  York,  and  the  postage  paid  thereon,  and  also  that  said  let- 
ter be  registered  in  the  United  States  postoffice  prior  to  May  10, 
igo6. 

NOTE. — Notice  may  he  given  by  publication  of  the  pendency  of  the 
proceedings  in  such  manner  as  the  court  may  direct,  and  the  court  may 
proceed  upon  such  notice  as  if  the  citation  had  beeu  persoually  served: 
Cal.  C.  C.  P.,  sec.  1439. 

In  this  particular  matter  the  citation,  although  not  in  the  form  of  a 
notice,  appears  to  be  all  tliat  is  necessary.  The  very  careful  may  inclose 
with  the  citation  a  formal  notice,  if  that  way  inclined.  If  so,  it  will 
be  difTicult  to  prove  service  except  by  mailing  it  under  Code  of  Civil 
I'rocedure,  1005:  Arizona,  C.  C,  par.  17U8;  Idaho,  C.  C.  P.,  sec.  4102; 
Montana,  C.  C.  P.,  sec.  2543;  Nevada,  Corap.  Laws,  sec.  3030;  North 
Dakota,  Probate  Code.  sees.  63G2-6371;  South  Dakota,  Probate  Code, 
sec.  137;  Washington,  Ballinger's  Codes,  sec.  6170;  Wyoming,  Rev.  Stats., 
Bee.  4625. 


No.  1358. — Order  Suspending  Executor. 

[Title  of  Court  and  Estate.] 

It  appearing  to  the  court  from  credible  information  that  A.  B., 
the  executor  of  the  will  of  said  deceased,  has  mismanaged  the 
property  of  the  said  estate  committed  to  his  charge,  it  is  hereby 
ordered  that  the  powers  of  the  said  A.  B.,  as  executor,  be,  and 
they  are  hereby,  suspended  until  the  matter  is  investigated.  This 
order  is  to  take  effect  this  sd  day  of  June,  A.  D.  ipo6,  at  12 
o'clock  M. 

NOTE. — California,  C.  C.  P.,  sec.  1436.  This  form  may  be  used  when 
an  executor  or  administrator's  raanajjcment  of  an  estate  comes  within 
the   enumerated    events    mentioned   in   Code   of   Civil   Procedure,   sec.    1436. 

The  source  of  the  information  upon  which  a  judge  acts  in  removing  an 
executor  is  immaterial:  Estate  of  Kelley,  122  Cal.  379;  Arizona,  C.  C,  par. 
1705;  Idaho,  C.  C.  P.,  sec.  4099;  Montana,  C.  C.  P.,  sec.  2540;  Nevada, 
Comp.  Laws,  sec,  3026;  North  Dakota,  Probate  Code,  sees.  6362-6371; 
South  Dakota,  Probate  Court,  sees.  133-137;  Washington,  Ballinger's 
Codes,  sec.  6167;  Wyoming  Rev.  Stats.,  sec.  4622. 


No.  1359. — Order  Directing  Notice  to  Be  Given  to  Suspended 

Executor. 

[Title  of  Court  and  Estate.] 

An  order  having  this  day  been  made,  suspending  A.  B.  from 
his  functions  as  executor  of  the  said  estate,  it  is  hereby  ordered 
that  the  clerk  of  this  court  notify  said  A.  B.  of  said  order  of  sus- 


/So  New  Book  of  Forms. 

pension,  and  cause  to  be  issued  and  served  on  him  a  citation  to 
appear  and  show  cause  before  this  court,  on  the  12th  day  of  June, 
ipo6,  why  his  letters  should  not  be  revoked. 

NOTE. — California,  C.  C.  P.,  sec.  1437.  If  the  information  eomes  to 
the  court  in  the  form  of  an  affidavit,  or  record,  or  in  any  other  ioim 
suiGcieut  to  cause  a  court  to  act  upon  "credible  information"  as  pro- 
vided in  Code  of  Civil  Procedure,  section  1436,  the  notice  and  service 
of  citation  will  naturally  be  waived  by  the  informer  or  his  attorney. 

It  is  not  necessary  to  suspend  an  executor  before  citing  him  to  appear. 
The  object  being  to  remove  him,  the  court  may  reach  the  ultimate 
object  by  a  direct  proceeding  without  a  prior  suspension:  Estate  of 
Xtlley,  122  Cal.  379,  55  Pac.  136;  Arizona,  C.  C,  par.  17U6;  Idaho,  C.  C. 
P.,  sec.  4100;  Montana,  C.  C.  P.,  sec.  2541;  Nevada,  Comp.  Laws,  sec. 
3028;  North  Dakota,  Probate  Code,  sees.  6362-6371;  South  Dakota,  Pro- 
bate Code,  sees.  133-137;  Washington,  BaUinger's  Codes,  sec.  6168; 
Wyoming,  Eev.  Stats.,  sec.  4623. 


No.  1360. — Order  Directing  Executor  to  Show  Cause  Why 
His  Letters  Should  not  be  Revoked — Failure  to  Return 
Account  of  Sale. 

[Title  of  Court  and  Estate.] 

It  appearing  to  the  court  from  the  affidavit  of  A.  B.  that  C.  D., 
the  executor  of  the  will  of  said  deceased,  has  neglected  to  make  a 
return  of  a  sale  of  personal  property  sold  by  him  by  order  of  this 
court  on  May  j,  ipo6,  within  thirty  days  from  after  said  sale,  it  is 
ordered  that  the  clerk  of  this  court  give  said  C.  D.  notice  to  ap- 
pear before  this  court  on  Friday,  August  5,  IQ06,  and  show  cause 
why  his  letters  should  not  be  revoked  because  of  said  neglect. 

NOTE. — If  such  return  is  not  made  within  thirty  days  after  the  sale, 
his  letters  may  be  revoked,  or  he  may  be  punished  by  attachment,  or 
his  letters  may  be  revoked  after  one  day's  notice:  Cal.  C.  C.  P.,  see. 
1575. 

See  Id.,  sees.  1436-1440,  for  removal  and  suspension.  Arizona,  C.  C, 
par.  1814;  Idaho,  C.  C.  P.,  sec.  4209;  Montana,  C.  C,  sec.  2707;  Nevada, 
Comp.  Laws,  sec.  2948;  North  Dakota,  Probate  Code,  sees.  6362-6371; 
South  Dakota,  Probate  Code,  sec.  238;  Utah,  Eev.  Stats.,  sec.  3883; 
Wyoming,  Kev.  Stats.,  sec.  4815. 


No.  1361. — Order — Statement — Executor  to  File. 

[Title  of  Court  and  Estate.] 

It  is  ordered  that  the  executor  of  this  estate  forthwith  return 
and  file  a  statement  of  all  claims  against  this  estate  that  have  been 
presented  to  him  up  to  and  including  the  date  said  report  is 
filed.  Said  claim  to  be  in  compliance  with  section  15 12  of  the 
Code  of  Civil  Procedure  of  the  state  of  California. 


OUDCRS.  781 

NOTE.— Cnlifornia,  C.  C.  P.,  ace.  1G2.5;  Alaska,  Codes,  pt.  4,  c.  S6,  sees. 
859-871;  Arizona,  0.  C,  par.  1857;  Idnho,  C.  C.  P.,  sec.  4245;  Montana, 
C.  C.  P.,  sec.  2783;  New  Mexico,  Comp.  Laws,  sees.  19«1,  20U5,  2006; 
North  Dakota,  Probate  Code,  sees.  6486-0503;  South  Dakota,  Probate 
Code,  sec.  lOU;  Wyoming  liev.  Stats.,  sec  4715. 


No.  1362. — Order  Removing  Executor  for  Neglecting  to  Give 
Notice  to  Creditors. 

[Title  of  Court  and  Estate] 

The  administrator  of  this  estate  having  neglected  for  two 
months  to  give  notice  to  the  creditors  thereof,  and  after  citation 
being  issued,  served  on  him  to  show^  cause  for  said  neglect,  and 
said  citation  having  been  ser\'ed  and  returned  as  provided  by  law, 
and  the  said  administrator  not  appearing  as  commanded,  but  made 
default,  it  is  hereby  ordered  that  the  letters  of  administration  upon 
the  estate  of  the  said  E.  F.,  deceased,  issued  to  said  A.  B.,  be, 
and  they  are  hereby,  revoked,  and  A.  L.,  the  next  in  kin  to  said  de- 
ceased, is  hereby  appointed  administrator  of  said  estate,  and  that 
letters  issue  to  him  upon  giving  a  bond  as  required  by  law,  in 
the  sum  of  $5,000. 

NOTE. — If  such  officer  neglects  for  two  months  after  his  appointment 
to  give  such  notice,  his  letters  may  be  revoked  and  the  next  of  kin  or 
some  other  person  may  be  appointed  in  his  stead:  Cal.,  C.  C.  P.,  sec. 
1511. 

It  has  been  held  that  when  a  widow  is  appointed  and  the  estate  is  of 
less  value  than  fifteen  hundred  dollars,  her  letters  cannot  be  revoked 
because  she  did  not  give  notice  to  creditors,  because  the  entire  estate 
must  be  distributed  to  her,  under  Code  of  Civil  Procedure,  sec.  1469; 
Estate  of  Atwood,  127  Cal.  427,  59  Pac.  770;  Arizona,  C.  C,  par.  1760; 
Idaho,  C.  C.  P.,  sec.  4153;  Montana,  C.  C.  P.,  sec.  2621;  Nevada,  Comp. 
Laws,  sec.  2907;  North  Dakota,  Probate  Code,  sees.  6352-6371;  South 
Dakota,  Probate  Code,  sec.  189;  Washington,  Ballinger's  Codes,  sec.  6244. 


No.  1363. — Order  Directing  Administrator  to  Show  Cause 
Why  He  Should  not  be  Removed  for  Omitting  to  Cause 
Property  to  be  Appraised. 

[Title  of  Court  and  Estate.] 

It  appearing  to  the  court  from  the  affidavit  of  A.  B.  that  after 
the  inventory  in  the  matter  of  the  said  estate  had  been  made  and 
filed,  a  large  amount  of  silver  household  ornaments  and  silver 
tableware,  such  as  spoons,  plates,  etc,  valued  at  over  $2,000, 
the  property  of  said  estate,  came  to  the  possession  of  C.  D.,  the 
admimstrator  thereof,  and  that  no  part  of  said  property  was  men- 
tioned in  said  inventory,  and  more  than  two  months  having 
elapsed  since  said  inventory  was  filed,  and  the  said   C.  D.,  not 


782  New  Book  of  Forms. 

having  caused  the  said  property  to  be  appraised  in  the  manner 
prescribed  by  law,  it  is  ordered  that  the  clerk  of  this  court  cause 
notice  to  be  served  on  the  said  C.  D.  to  show  cause  before  this 
court  on  June  s,  1906,  at  10  o'clock  A.  M.,  why  he  should  not  be 
removed  from  his  office  of  administrator  of  said  estate  because  of 
said  failure.  It  is  also  ordered  that  said  notice  be  served  at  least 
ten  days  prior  to  the  time  set  for  hearing,  and  that  a  copy  of  the 
affidavit  of  said  A.  B.  be  served  with  said  notice. 

NOTE. — The  punishment  may  be  attached  for  contempt  or  removal 
from  office:  Cal.  C.  C.  P.,  sec.  1451. 

Also  when  it  comes  to  the  knowledge  of  a  judge  that  the  bond  men- 
tioned above  is  from  any  cause,  insufficient,  the  judge  without  petition 
or  application,  must,  on  his  own  motion,  cause  him  to  be  "cited  to  show 
cause  why  he  should  not  give  further  security."  The  judge  is  given  full 
powers  to  proceed  upon  his  own  information,  knowledge,  or  belief,  as  he 
would  or  could  have  proceeded  upon  petition.  When  a  petition  is  filed 
he  causes  "notice"  to  be  given;  but  when  he  acts  upon  his  own  knowl- 
edge, he  causes  a  "citation"  to  be  served:  Cal.  C.  C.  P.,  sec.  1402; 
Arizona,  C.  C.  P.,  par.  1681;  Idaho,  C.  C.  P.,  sec.  4076;  Montana,  C.  C. 
P.,  sec.  2485;  Nevada,  Corap.  Laws,  sec.  2851;  North  Dakota,  Probate 
Code,  sees.  6362-6371;  South  Dakota,  Probate  Code,  138-145;  Washington, 
Ballinger's  Codes,  sec.  6161;  Wyoming,  Eev.  Stats.,  sec.  4675. 


No.  1364. — Order — Administrator,  Special,  Appointing. 
[Title  61  Court  and  Estate.] 

[to  be  by  the  clerk  entered  upon  the  court's  minutes.] 
Application  having  been  made  for  the  appointment  of  a  special 
administrator  to  take  charge  of  the  estate  of  /.  B.,  deceased,  until 
the  qualification  of  an  administrator  of  the  estate  of  said  deceased, 
or  until  the  further  orders  of  this  court,  it  is  ordered  that  S.  B., 
Esq.,  be,  and  he  is  hereby,  appointed  special  administrator  of  the 
estate  of  said  deceased  to  collect  and  take  charge  of  the  estate 
of  said  deceased  in  whatever  county  the  same  may  be  found,  and 
to  exercise  such  other  powers  as  may  be  necessary  for  the  preser- 
vation of  the  estate  of  said  deceased  [or  the  order  may  be  that 
the  public  administrator  take  charge  of  the  estate], 

NOTE. — In  California,  the  appointment  may  be  made  at  any  time,  and 
without  notice,  and  must  be  made  by  entry  upon  the  minutes  of  the 
court,  specifying  the  powers  to  be  exercised  by  the  administrator.  Upon 
Buch  order  being  entered,  and  after  the  person  appointed  had  given 
bond,  the  clerk  must  issue  letters  of  administration  to  such  person,  in 
conformity  with  the  order:  Cal.,  C.  C.  P.,  sec.  1412;  Alaska,  Codes,  pt.  4, 
c.  80,  sees.  772-800;  Arizona,  C.  C,  par.  1688;  Idaho,  C.  C.  P.,  sec.  4082; 
Montana,  C.  C.  P.,  sec.  2501;  Nevada,  Comp.  Laws,  sec.  2856;  New- 
Mexico,  Comp.  Laws,  sees.  1935-1945;  North  Dakota,  Probate  Code,  sec. 
6325;  South  Dakota,  Probate  Code,  sees.  119-125;  Utah,  Rev.  Stats  sec' 
3822;  Wyoming,  Rev.  Stats.,  sec,  4640. 


ORoeES.  783 

No.  1365. — Order — Administrator,  Special,  Appointing. 

[Title  of  Court  and  Estate.] 

It  is  ordered  that  /.  W.  be,  and  he  is  appointed  special  admin- 
istrator of  the  estate  of  H.  W.,  deceased,  to  collect  and  take  charge 
of  the  estate  of  said  decedent,  in  whatever  county  or  counties  the 
same  may  be  found ;  and  to  exercise  such  other  powers  as  may 
be  necessary  for  the  preservation  of  the  estate ;  and  that  special 
letters  of  administration  of  the  estate  of  said  decedent  issue  to 
said  /.  W.,  upon  his  giving  a  bond  in  the  sum  of  $10,000. 

NOTE.— California,  C.  a  P.,  sec.  1412. 

No.  1366. — Order  Appointing  Special  Administrator. 
[Title  of  Court  and  Estate.] 

It  is  ordered  that  A.  B.  be,  and  he  is  hereby,  appointed  special 
administrator  of  the  estate  of  C.  D.,  deceased,  to  collect  and  pre- 
serve for  the  executor,  or  administrator,  when  hereafter  appoint- 
ed, all  the  goods,  chattels,  debts,  and  effects  of  the  decedent ;  all 
his  incomes,  rents,  issues,  and  profits,  claims,  and  demands,  to  take 
the  charge  and  management  of,  enter  upon  and  preserve  from 
damage,  waste,  and  injury,  his  real  estate;  and  for  such  and  all 
necessary  purposes  to  commence  and  maintain  or  defend  suits  and 
other  legal  proceedings  as  an  administrator  might  or  could ;  and 
it  is  ordered  that  letters  be  issued  to  him  upon  his  filing  a  bond, 
to  be  approved  by  the  judge  of  this  court,  in  the  sum  of  $10,000. 

NOTE.— California,  C.  C  P.,  sees.  1412,  1704;  Alaska,  Co-les.  pt.  4,  c. 
15,  see.  780;  Arizona,  C.  C,  par.  1688;  Idaho,  C.  C.  P.,  sec.  4082;  Montana, 
C.  C.  P.,  sec.  2501;  Nevada,  Comp.  Laws.  sec.  2856;  New  Mexico^  Conip. 
Laws,  sees.  1946,  2020;  North  Dakota,  Probate  Code.  see.  6325;  South 
Dakota,  Probate  Code,  sees.  119-125;  Utah,  Eev.  Stats.,  sec.  3822; 
Wyoming,  Rev.   Stats.,  sec.   4640. 


No.    1367. — Order   Suspending  the   Powers   of  Administrator 
Until  It  can  be  Determined  if  He  has  Wasted  Estate. 

[Title  of  Court  and  Estate.] 

In  this  matter,  upon  reading  and  filing  the  petition  of  A.  B., 
praying  that  C.  D.,  the  administrator  of  said  estate,  be  required 
to  give  further  security  and  that  his  powers  be  suspended  until 
the  matters  contained  in  said  petition  can  be  heard  and  determined, 
it  is  hereby  ordered  that  the  powers  of  C.  D.,  as  administrator  of 


784  New  Book  of  Forms. 

the  estate  of  E.  P.,  deceased,  be,  and  they  are  hereby,  suspended 
until  the  matter  of  said  petition  can  be  heard  and  determined ;  and 
that  a  copy  of  this  order  be  served  upon  said  administrator. 

NOTE. — When  a  petition  is  presented  praying  that  an  executor  or 
administrator  be  required  to  give  further  security,  etc.,  he  may  be  sus- 
pended until  the  matter  can  be  heard:  Cal.  C.  C.  P.,  sec.  1401;  Arizona, 
C.  C,  par.  1608;  Idaho,  C.  C.  P.,  sec.  407.5;  Montana,  C.  C.  P.,  sec.  2484; 
Nevada,  Comp.  Laws,  sec.  2050;  North  Dakota.  Probate  Code,  sees.  6362- 
6371;  South  Dakota,  Probate  Code,  sec.  133;  Wyoming,  Eev.  Stats.,  sec. 
4674. 


No.  1368. — Order — Administrator,  Appointing. 
[Title  of  Court  and  Estate.] 

The  petition  of  H.  J.,  praying  for  letters  of  administration  of 
the  estate  of  T.  J.,  deceased,  coming  on  regularly  to  be  heard,  and 
due  proof  having  been  made  to  the  satisfaction  of  this  court  that 
the  clerk  had  given  notice  in  all  respects  according  to  law ;  and 
all  and  singular  the  law  and  the  evidence  being  by  the  court 
understood  and  fully  considered:  Whereupon,  it  is  by  the  court 
here  adudged  and  decreed  that  said  T.  /.  died  on  the  seventeenth 
day  of  May,  ipo6,  intestate,  in  tlie  city  and  county  of  San  Fran- 
isco;  that  he  was  a  resident  of  said  city  and  county  at  the  time 
of  his  death,  and  that  he  left  estate  in  the  city  and  county  of  San 
Francisco,  and  within  the  jurisdiction  of  this  court. 

It  is  ordered  that  letters  of  administration  of  the  estate  of  the 
said  T.  /.,  deceased,  issue  to  the  said  petitioner,  H.  J.,  upon  his 
taking  the  oath,  and  filing  a  bond  according  to  law,  in  the  sum  of 

$10, /'OO. 

NOTE. — In  California,  on  the  hearing,  it  being  first  proved  that  notice 
has  been  given  of  the  application,  the  court  hears  the  proofs  and  then 
orders  letters  to  issue  to  the  party  entitled:  Cal.  C.  C.  P.,  sec.  137.5; 
Alaska,  Codes,  pt.  4,  c.  80.  sees.  772-800;  Arizona,  C.  C,  par.  1657; 
Idaho,  C.  C.  P.,  sec.  4051;  Montana,  C.  C.  P.,  sec.  2444;  Nevada,  Comp, 
Laws,  sec.  2830;  New  Mexico,  Comp.  Laws,  sees.  1935-1945;  North 
Dakota,  Probate  Code,  sees.  6313-6324;  South  Dakota,  Probate  Code,  sec 
90;  Wyoming,  Eev.  Stats,,  sec.  4650. 


No.  1369. — Order — Administrator — Security,  Further,  to  Give. 
[Title  of  Court  and  Estate.] 

In  this  matter  it  is  ordered  that  the  prayer  of  the  petition  of 
//.  vS".  be  granted  to  the  extent  that  S.  B.,  the  administrator  of  the 
estate  of  H.  S.  W.,  deceased,  within  ten  days  from  the  date  of 
this  order,  file  a  new  bond  as  administrator  of  said  estate  in  the 
sum  of  ten  thousand  dollars.  Said  bond  to  be  submitted  to  me 
for  approval  on  or  before  ten  days  from  date. 


Orders.  785 

NOTE. — In  California,  if  it  appears  that  the  Bceurity  ia,  from  any 
cause,  insufficient,  the  court  may  make  an  order  requiring  the  eiecuior 
or  administrator  to  give  further  security,  or  to  file  a  new  bond  in  tho 
usual  form  within  a  reasonable  time,  not  less  than  five  days:  Cal.  C.  C 
P.,  sec.  1399;  Alaska,  Codes,  pt.  4,  c  80,  sees.  772-8U0;  Arizona,  C.  C^ 
par.  1678;  Idaho,  C.  C.  P.,  sec  4070;  Montana,  C.  C.  P.,  3/>c.  2482;  N.vir 
Mexico,  Comp.  l^aws,  sees.  20U7-2010;  iN'ortli  Dakota,  Probate  Code  Scca. 
6358-G361;  South  Dakota,  Probate  Code,  sees.  109,  IIU, 


No.  1370. — Order  Declaring  Estate  Community  Property. 
[Title  of  Court  and  Estate,] 

[This  form  will  do  for  any  case.  State  the  preliminary  facts 
and  then  proceed:] 

It  is  tlierefore  adjudged  and  decreed  that  the  land  hereinafter 
described  was,  during  tlie  hfetime  of  said  deceased,  and  at  the 
time  of  her  death,  the  community  property  of  said  deceased  and 
said  A.  B.,  her  husband,  who  were,  when  the  same  was  acquired 
by  said  deceased,  husuand  and  wife,  and  that  the  said  land  becamt 
at  the  death  of  the  said  deceased,  the  property  of  said  husband  and 
is  now  vested  in  the  said  husband,  free  of  all  right,  title,  claim  or 
demand  of  any  odier  person  claiming  under  tlie  said  C.  B.,  de- 
ceased, as  heir  or  otlierwise.  The  said  land  is  situated  in  the 
county  of  Napa,  state  of  California,  and  is  described  as  follows: 
[Description.] 

NOTE.— California,  a  a  P.,  sees.  1705-1723;  Idaho,  C.  C.  P^  sec. 
4281;  Montana,  C.  C.  P.,  sec  2930;  Utah,  liev.  btats.,  sec.  3572;  Wyoming, 
Bev.  Stata^  sec  4556. 


No.    137 1. — Order  that  Disputed,   Contingent,   or  Claim  not 
Due,  be  Paid  into  Court. 

[Title  of  Court  and  Estate.] 

{Clause  in  order  for  payment  of  dehts.'\ 

It  is  ordered  that  the  daim  of  A.  B.  C,  for  $3,256,  described  in 
said  account  as  not  due  [or  is  contingent,  or  disputed],  be  paid 
into  this  court  there  to  remain  and  be  paid  to  the  said  A.  B.  C. 
when  he  becomes  entitled  tliereto. 

NOTE. — If  a  party  fails  to  establish  his  claim,  the  court  "into"  which 
it  is  paid  will  distribute  or  pay  it  as  the  circumstances  of  the  estate 
require:  Cal.  C.  C.  P.,  sec.  1(148;  Arizona,  C.  C,  par.  1880;  Idaho,  C.  C. 
P.,  sec.  4264;  Montana,  C.  C.  P.,  sec.  2815;  Nevada,  Comp.  Laws,  sec 
2986;  North  Dakota,  Probate  Code,  sec.  6425;  South  Dakota,  Probate 
Code,  sec.  296;  Utah,  Rev.  Stats.,  sec.  3874;  Washington,  Ballinger'i 
Codes,  see.  UH.'iS;  Wvoming,  Eev.  Stats^  sec.  4731. 
New  Forms — 50 


^-86  New  Book  of  Forms. 


No.    1372. — Order — Debtor  to   be   Examined. 

[Title    )f  Court  and  Cause.] 

On  reading  the  foreg-oing  affidavit,  and  it  satisfactorily  appear- 
ing to  me  therefrom  that  said  /.  P.  S.,  the  defenidant  in  the 
above-entitled  action,  has  property  which  he  unjustly  refuses  to 
apply  toward  the  satisfaction  of  the  judgment  in  said  action ;  and 
that  it  is  a  proper  case  for  this  order,  and  on  application  of  the 
plaintifif's  attorney,  I,  the  undersigned,  judge  of  the  said  superior 
court,  do  hereby  order  and  require  the  said  defendant,  J.  P.  S., 
personally  to  be  and  appear  before  A^.  M.  L.,  court  commissioner 
of  said  court,  as  referee,  hereby  appointed  for  that  purpose,  at  his 
office,  No.  5SS  Kearny  street,  in  the  city  and  county  of  San  Fran- 
cisco, on  the  sixteenth  day  of  November,  1906,  at  eleven  o'clock 
in  the  forenoon  of  that  day,  to  answer  concerning  his  property; 
and  that  a  copy  of  said  affidavit  and  of  this  order  be  previously 
served  upon  said  defendant  at  least  five  days  prior  to  the  said 
sixteenth  day  of  November,  ipo6. 

NOTE. — In  California,  when  an  execution  against  property  of  a  judg- 
ment debtor  is  issued  to  the  sheriff  of  the  county  where  he  resides,  or 
if  he  does  not  reside  in  this  state,  to  the  sheriff  of  the  county  where  the 
judgment-roll  is  filed,  is  returned  unsatisfied  in  whole  or  in  part,  the 
judgment  creditor,  at  any  time  after  such  return  is  made,  is  entitled  to 
an  order  from  a  judge  of  the  court,  requiring  such  judgment  debtor  to 
appear  and  answer  concerning  his  property  before  such_  judge,  or  a 
referee  appointed  by  him,  at  a  time  and  place  specified  in  the  order; 
but  no  judgment  debtor  must  be  required  to  attend  before  a  judge  or 
referee  out  of  the  county  in  which  he  resides. 

After  the  issuing  of  an  execution  against  property,  and  upon  proof, 
by  affidavit,  of  a  party  or  otherwise,  to  the  satisfaction  of  a  judge  of 
the  court,  that  anv  judgment  debtor  has  property  which  he  unjustly 
refuses  to  apply  toward  the  satisfaction  of  the  judgment,  such  judge 
may,  by  an  order,  require  the  judgment  debtor  to  appear  at  a  specified 
time  and  place,  before  such  judge,  or  a  referee  appointed  by  him,  to 
answer  concerning  the  same;  and  such  proceedings  may  thereupon  be 
had  for  the  application  of  the  property  of  the  judgment  debtor  toward 
the  satisfaction  of  the  judgment,  as  are  provided  upon  the  return  of 
an  execution:  Cal.  C.  C.  P.,  sees.  714,  715;  A]a,ska,  Codes,  pt.  4,  c.  14,  sees. 
135-162;  Arizona,  C.  C,  pars.  2584-2591;  Idaho,  C.  C.  P.,  sees.  3562-356S; 
Montana  C.  C.  P.,  sec.  1263;  Nevada,  Comp.  Laws,  sees.  3335-3342;  New 
Mexico  Comp.  Laws,  sees.  3107,  3377;  North  Dakota,  C.  C.  P.,  sec.  5566- 
Oregon'  Codes  and  Statutes,  sees.  254-258;  South  Dakota,  C.  C.  P.,  sec 
398-  Utah  Rev.  Stats.,  sees.  3272-31^81;  Wasliington,  Ballingor's  Codes 
seea.  5312-5345;  Wyoming,  Eev.  Stats.,  sees.  3940,  3941,  3942,  3943. 


Orders.  787 


No,  1373. — Order — Property  of  Debtor  to  be  Applied  to  Sat- 
isfy Judgment. 

[Title  of  Court  and  Cause.] 

It  appearing  from  the  examination  of  A.  B.,  that  he  has  in  his 
possession  one  hundred  tons  of  hay  belonging  to  the  said  judg- 
ment debtor,  and  no  part  of  said  hay  being  exempt  from  execu- 
tion, and  that  said  A.  B.  has  no  claim  against,  or  Hen  upon,  said 
hay,  except  for  its  storage,  it  is  ordered  that  he,  the  said  A.  B., 
immediately  deliver  said  hay  to  the  sheriff  of  said  county  to  be  ap- 
plied  toward  the  satisfaction  of  the  judgment  in  the  above-en- 
titled action,  upon  the  payment  to  him,  the  said  A.  B.,  of  the  sum 
of  $2y.^o,  his  accrued  charges  for  the  storage  of  said  hay  up  to 
the  date  of  this  order. 

NOTE. — California.  C.  C.  P.,  sees.  717-721;  Alaska,  Codes,  pt.  4,  c. 
31,  sees.  714,  715;  Arizona,  C.  C,  pars.  2584-2591;  Idaho,  C.  C.  P.,  sees. 
3562-.356S;  Montana,  C.  C.  P.,  sees.  1260-1272;  Nevada,  Comp.  Laws,  sees. 
3335-3342;  New  Mexico,  Comp.  Laws,  sees.  3107,  3377;  North  Dakota, 
C.  C.  P.,  sec.  5566;  Oregon,  Codes  and  Statutes,  sees.  254-258;  South 
Dakota,  C.  C.  P.,  sec.  98;  Utah,  Rev.  Stats.,  sees.  3272-3281;  Washington, 
Ballingcr's  Codes,  sees.  5218,  5345;  Wyoming,  Rev.  Stats.,  sees.  3941, 
3950. 


No.  1374. — Order — Debtor  of  Judgment  Debtor  to  be  Exam- 
ined. 
[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Napa, — ss. 

On  reading  the  foregoing  aflfidavit,  and  it  satisfactorily  appear- 
ing to  me  therefrom  that  0.  P.  S.  is  indebted  to  the  defendant  in 
the  above-entitled  action,  and  that  this  is  a  proper  case  for  this 
order,  now,  on  application  of  the  plaintiff's  attorney,  it  is  hereby 
ordered  that  the  said  0.  P.  S.  personally  be  and  appear  before 
\stating  before  whom  and  the  time  and  place],  at  ten  o'clock  in 
the  forenoon  of  that  day,  to  answer  concerning  his  said  indebted- 
ness, and  that  a  copy  of  said  affidavit  and  of  this  order  be  pre- 
viosuly  sen-ed  upon  said  defendant  at  least  five  days  prior  to  said 
tenth  day  of  June,  jpo6  [or  other  time], 

NOTE.— California,  C.  C  P.,  sees.  714,  715;  Alaska,  Codes,  pt.  4,  c.  31, 
Bees.  295-298;  Arizona,  C.  C,  pars.  2584-2591;  Idaho,  C.  C.  P.,  sees.  3562- 
3568;  Montana,  C.  C.  P.,  sees.  1260-1272;  Nevada,  Comp.  Laws,  3335-3342; 
New  Mexico,  Comp.  Laws,  sees.  3107,  3377  [garnishees];  North  Dakota, 
C.  C.  P.,  sec.  5566;  Oregon,  Codes  and  Statutes,  sees.  254,  258;  South 
Dakota,  C.  C.  P.,  see.  398;  Utah,  Rev.  Stata.,  sec  3274;  Washington, 
Ballingcr's  Codes,  sees,  5312-5345. 


^88  New  Book  oi'  Forms. 


No.  1375. — Order — Deposition,  Commission  to  Take. 
[Title  of  Court  and  Cause.] 

Upon  reading  and  filing  the  affidavit  of  /.  D.,  and  upon  the 
tiles,  papers,  and  records,  in  this  action,  and  due  proof  of  service 
of  notice  of  motion  having  been  made  and  filed,  on  motion  of 
W.  C.  B.,  Esq.,  attorney  for  the  plaintiff  in  said  action,  it  is  or- 
dered that  a  commission  issue  out  of  and  under  the  seal  of  this 
court,  directed  to  H.  H.,  a  person  agreed  upon  by  and  between 
the  parties,  residing  at  the  city  of  New  York,  in  the  state  of  New 
York,  to  take  the  testimony  of  W.  C,  residing  at  the  same  place, 
as  a  witness  on  behalf  of  the /'/aw/i'^',  wpon  such  proper  interroga- 
tories, direct  and  cross,  as  the  respective  parties  may  prepare  to 
be  settled,  if  the  parties  shall  disagree  as  to  their  form,  by  the 
honorable  judge  of  this  court,  on  Wednesday,  February  3,  1906, 
at  ten  o'clock  A.  M.,  at  the  courtroom  of  this  court. 

NOTE —Calif omia,  C.  C.  P.,  sec.  2024;  Alaska,  Codes,  pt.  4,  c.  64,  sees. 
642-658;  Arizona,  C.  C,  pars.  2506-2532;  Idaho,  C.  C.  P.,  sees.  4527-4o29; 
Montana,  C.  C.  P.,  sec.  3350;  Nevada,  Comp.  Laws,  see.  3507;  New 
Mexico  Comp.  Laws,  sees.  3014-3067;  North  Dakota,  C.  C.  P.,  sec.  8389: 
Oregon,  Codes  and  Statutes,  sees.  989,  990;  South  Dakota,  C.  C.  P.,  sees. 
514,  515-524;  Utah,  Rev.  Stats.,  sees.  3450-3452;  Washington,  Ballmger  a 
Codes,  sees.  6017-6030. 


No.    1376. — Order — Deposition,   Commission  to  Take. 

[Title  of  Court  and  Estate.] 

The  People  of  the  State  of  California,  to  /.  B. : 

Know  ye,  that,  trusting  to  your  fidelity  and  circumspection, 
we  have  appointed  you  special  commissioner,  and  do  hereby  au- 
thorize you  to  administer  the  necessary  oaths,  and  take  the  depo- 
sitions of  H.  J.,  residing  at  Rochester,  Genesee  county,  state  of 
New  York,  or  either  of  them,  in  answer  to  the  interrogatories,  di- 
rect and  cross,  annexed  hereto,  in  the  matter  of  the  estate  of  D.  B., 
Esq.,  deceased. 

All  of  which  matter,  together  with  this  writ,  you  will  return  to 
this  court,  according  to  law,  in  a  sealed  envelope,  directed  to  the 
clerk  of  said  superior  court,  at  the  city  of  San  Francisco,  state  of 
California,  and  forward  the  same,  by  mail  or  express,  or  other 
usual  channel  of  conveyance. 

(All  courts.) 

NOTE. — California,  C.  C.  P.,  sec.  1024;  Alaska,  Codes,  pt.  4,  c.  62,  sees. 
642-658;  Arizona,  C.  C,  par.  2506-2532;  Idaho,  C.  C.  P.,  sees.  4527-4529; 
Montana,  a  C,  P.,  sec.  3350;  Nevada,  Comp.  Laws,  see.  3507;  New  Mex- 


Ordicrs.  789 

ieo,  Comp.  Laws,  sees.  3014-3067;  North  Dakota,  C.  C.  P.,  sec.  8389; 
Oregon,  Codes  and  Statutes,  Bees.  989,  990;  South  Dakota,  C.  C.  P.,  »«■. 
514,  515,  524;  Utah,  Rev.  Stats.,  sees.  345U-3452;  Waahington  Balliuger's 
Codes,  sees.  G017-G030;  Wyoming,  Rev.  Stats.,  sees.  3703-3729. 


No.   1377. — Order  for  Partial  Distribution — Bond. 
[Title  of  Court  and  Estate.] 

It  is  ordered  that  the  said  E.  D.  and  £.  F.,  before  receiving 
their  interests,  or  any  portion  thereof,  shall  execute  and  deliver 
to  the  administrator  of  said  estate,  a  bond  in  the  penal  sum 
of  $^,000,  to  be  approved  by  this  court  or  judge,  payable  to  the 
said  administrator,  and  conditioned  for  the  payment,  whenever  re- 
quired, of  his  proportion  of  the  debts  due  from  said  estate,  not  ex- 
ceeding the  value  of  the  portion  thereof  to  which  he  or  she  is  en- 
titled;  and  that  the  said  A.  F.,  as  said  administrator,  deliver  to 
the  said  person  so  executing  said  bond  his  portion  of  said  estate, 
as  follows,  to  wit : 

To  the  said  £.  D.,  the  following  portion  thereof:  [Insert.] 
To  the  said  E.  F.,  the  following  portion  thereof:  [Insert.] 
The  residue  so  distributed  to  said  last  named    persons  is  de- 
scribed as  follows,  to  wit:  [Insert.] 

NOTE. — California,  C.  C.  P.,  sec.  1661;  Alaska,  Codes,  pt.  4,  c.  85,  sec. 
880;  Arizona,  C.  C,  par.  18S9;  Idaho,  C.  C.  P.,  sec.  4273;  Montana,  C. 
C.  P.,  sec.  2833;  Nevada,  Comp.  Laws,  sees.  299G-3000;  New  Mexico, 
Comp.  Laws,  sees.  1946,  2020;  Oregon,  Codes  and  Statutes,  sees.  1223, 
1224;  Nori;h  Dakota,  Probate  Code,  sees.  6504-6508;  South  Dakota,  Pro- 
bate Code,  sees.  302-306;  Utah.  Rev.  Stats.,  sec.  1901,  p.  181;  Washing- 
ton, BaUinger's  Codes,  sees.  6350-6353;  Wyoming,  Rev.  Stats.,  sec  4829. 

No.  1378. — Order — Distribution — PartiaL 

[Title  of  Court  and  Estate.] 

This  case  coming  on  regularly  for  hearing  this  terrth  day  of 
May,  A.  D.  ipo6,  before  the  court,  on  the  petition  of  /.  B.,  brother 
and  heir  of  said  deceased,  and  due  proof  to  the  satisfaction  of 
the  court  having  been  made  of  the  service  of  the  notice  m  such 
cases  required,  according  to  law,  and  no  objection  tliereto  having 
been  made : 

Now,  then,  it  is  hereby  ordered,  adjudged,  and  decreed,  that 
distribution  of  said  estate  be  made,  and  that  tJie  admi)iistrator  of 
said  estate  do  transfer,  set  over,  and  deliver  unto  the  said  /.  B. 
the  property  and  funds  belonging  to  the  said  estate,  remaining  in 
his  hands  or  under  his  control,  after  pavment  of  the  costs  and  ex- 
penses of  administration  on  said  estate,  upon  the  execution  and  de- 
livery to  him  of  a  bond  of  indemnity  in  the  penal  sum  of  om 


790  New  Book  of  Forms. 

thousand  dollars,  payable  to  said  administrator,  with  two  suffi- 
cient sureties,  to  be  approved  by  the  judge  of  this  court,  condi- 
tioned that  the  said  /.  B.  shall  and  will,  whenever  required,  pay 
any  (or  his  proportion  of  the)  debt  or  debts,  which  may  be  found 
legallv  due  to  any  person  or  persons,  from  the  said  estate,  the 
said  applicant  to  pay  the  costs  of  this  proceeding. 

NOTE. — California,  C.  C.  P.,  sees.  1161,  1651,  1668;  Alaska,  Codes,  pt, 
4,  c.  89,  sees.  872-886;  Arizona,  C.  C,  par.  1883;  Idaho,  C.  C.  P.,  sec. 
4267;  Montana,  C.  C.  P.,  sec.  2818;  Nevada,  Comp.  Laws,  sec.  2988;  New 
Mexico,  Comp.  Laws,  sees.  1995,  2027,  2028,  2033-2039;  North  Dakota, 
Probate  Code,  sees.  G-104,  6516;  Oregon,  Codes  and  Statutes,  sec.  1220; 
South  Dakota,  Probate  Code,  sees.  302-306;  Washington,  Ballinger's 
Codes,  sec.  634L 


No.    1379. — Order — On   Petition  for   Distribution. 

[Title  of  Court  and  Estate.] 

On  reading  and  filing  the  petition  of  M.  J.,  the  administratrix 
of  the  estate  of  T.  J.,  deceased,  praying  for  an  order  of  distribu- 
tion of  the  residue  of  said  estate  among  the  persons  entitled,  it 
is  ordered  that  all  persons  interested  in  the  estate  of  the  said  T.  J., 
deceased,  be  and  appear  before  the  superior  court  of  the  city  and 
county  of  San  Francisco,  at  the  courtroom  of  said  court,  in  the 
City  Hall,  in  said  city  and  county  on  Monday,  the  nineteenth  day 
of  September,  ipo6,  at  11  o'clock  A.  M.,  then  and  there  to  show 
cause  why  an  order  of  distribution  should  not  be  made  of  the 
residue  of  said  estate  among  the  heirs  of  the  said  deceased,  ac- 
cording to  law. 

It  is  further  ordered,  that  a  copy  of  this  order  be  published 
once  a  zveek  for  four  successive  weeks,  before  the  said  nineteenth 
day  of  September,  1906,  in  the  D.  M.  C,  a  newspaper  printed  and 
published  in  the  said  city  and  county. 

jsTOTE. — In  California,  order  or  decree  is  made  on  the  petition  of  the 
executor  or  administrator,  or  of  any  person  interested  in  the  estate. 
Notice  of  the  application  must  be  given  by  posting  or  publication,  as  the 
court  may  direct,  and  for  such  time  as  may  be  ordered.  _  If  partition  be 
applied  for,  as  provided  in  this  chapter,  the  decree  of  distribution  shall 
not  devest  the  court  of  jurisdiction  to  order  partition,  unless  the  estate 
is  finally  closed:  Cal.,  C.  C.  P.,  sec.  1668;  Alaska,  Codes,  pt.  4,  c.  86,  sees. 
859-871;  Arizona,  C.  C,  par.  1899;  Idaho,  C.  C.  P.,  sec.  4278;  Montana, 
C  C  P  sec.  2846;  Nevada,  Comp.  Laws,  sec.  3003;  New  Mexico,  Comp. 
Laws  sees.  1995,  2027,  2028,  2033,  2039;  North  Dakota,  Probate  Code, 
sees  6404-6516;  South  Dakota,  Probate  Code,  sees.  307-323;  Utah,  Eev. 
Stats.,  sec.  3945;   Washington,  BaUinger'a  Codes,  sec.  6357. 


Orders. 


791 


No.   1380. — Order  Appointing  Agent  to  Take   Possession  of 
Real  Estate  for  Benefit  of  Nonresident  Distributee. 

[Title  of  Court  and  Estate.] 

Whereas,  it  appearing  to  the  court  from  the  records  of  this 
court  and  the  papers  on  file  in  this  case  and  from  the  testimony 
given  before  the  court  upon  the  settlement  of  the  final  account 
of  the  administrator  that  A.  B.  is  an  heir  at  law  of  the  said  C. 
D.,  deceased,  and  that  he  is  nonresident  of  the  state  of  California, 
and  his  habitation,  and  also  his  residence  being  unknown,  and 
all  the  real  estate  situated  in  the  county  of  Butte,  State  of  Cali- 
fornia, described  as  follows,  to  wit  [description],  was  by  decree 
of  final  distribution  assigned  to  said  A.  B.,  and  said  decree  of 
distribution  having,  on  the  ^d  day  of  June,  ipo6,  been  recorded 
in  the  office  of  the  county  recorder  in  book  g6  of  Deeds,  at  pages 
jp6,  7,  8;  and 

Whereas,  it  appearing  to  the  court  that  said  real  estate  is  a 
United  States  patent  for  a  quartz  mine;  and  it  also  appearing 
that  to  protect  said  mine  and  preserve  the  mills  and  other  work 
on  it  that  it  is  necessary  to  appoint  an  agent  to  take  charge  of 
said  real  estate  and  improvements  for  the  benefit  of  A.  B  ,  said 
absent  person,  and  to  act  for  him  in  respect  to  said  distribution : 

It  is  ordered  that  E.  F.  G.  be,  and  he  is  hereby,  appointed  agent 
to  take  possession  and  charge  of  the  property  hereinabove  de- 
scribed for  the  benefit  of  said  A.  B.  and  to  act  for  him  in  respect 
to  said  distribution  upon  said  agent's  execution  of  a  bond  to  the 
state  of  California  in  the  sum  of  $20,000,  to  be  approved  by  this 
court,  for  the  faithful  management  and  account  for  the  said  es- 
tate and  as  agent  for  the  said  A.  B. 

NOTE. — California,  C.  C.  P.,  sec.  1691.  It  has  not  been  overlooked 
that  it  is  unnecessary  to  recite  the  facts,  in  orders  of  this  class,  to  give 
a  court  authority  to  make  them;  but  it  is  the  practice  to  do  so  when 
the  matter  involved  relates  to  real  estate  and  otherwise  is  of  eonsiderabia 
importance:  Id.,  sec.  1704;  Arizona,  C.  d,  par.  1918-1925;  Idaho,  C.  C, 
P.,  sees.  4293-4304;  Montana,  C.  C.  P.,  sees.  2280,  2910;  Nevada.  Comp. 
Laws,  sec.  3032;  North  Dakota,  Probate  Code,  sec.  6524;  South  Dakota, 
Probate  Code.  sees.  324-331;  Utah.  Rev.  Stats.,  sees.  3970,  4039;  Wash- 
ington, Ballinger'3  Codes,  sec.  6371;  Wyoming,  Bev.  Stats.,  sec.  4852. 


No.  1381. — Order — Disincorporation — Notice  to  be  Given. 
[Title  of  Court  and  Cause.] 

On  reading  the  petition  of  the  M.  G.  Company  for  disincorpo- 
ration of  said  company,  and  praying,  among  other  tilings,  tliat  a 


792  New  Book  of  Forms 

time  and  place  be  fixed  for  the  hearing  of  said  petition,  and  that 
the  clerk  of  this  court  be  directed  to  publish  notice  thereof  and 
of  the  nature  of  said  application,  now,  on  the  motion  of  W.  H.  L. 
attorney  for  said  petitioners,  it  is  ordered  said  petition  be  filed 
with  the  clerk  of  this  court,  and  that  Friday,  the  tzvelfth  day  of 
September,  igo6,  at  the  opening  of  the  court  on  that  day,  or  as 
soon  thereafter  as  counsel  can  be  heard,  at  the  courtroom  of  this 
court,  in  the  City  Hall  of  the  city  and  county  of  San  Francisco, 
state  of  California,  be,  and  the  same  are  hereby  fixed  as  the  time 
and  place  for  the  hearing  of  said  petition,  and  the  clerk  is  di- 
rected to  cause  publication  thereof,  and  of  the  nature  of  the  appli- 
cation in  said  petition  made,  to  be  published  not  less  than  thirty 
nor  more  than  fifty  days  preceding  said  date,  in  the  D.  B.  B.,  a 
newspaper  published  in  said  city  and  county. 

NOTE.— California,  C.  C.  P.,  sec.  1230;  Idaho,  C.  C.  P.,  sees.  3834- 
3840;  Montana,  C.  C.  P.,  sees.  2190-2196;  Nevada,  Comp.  Laws,  sec.  887; 
New  Mexico,  Comp.  Laws,  sec.  435;  North  Dakota,  C.  C.  P.,  sees.  5762- 
5766;  OreP-on,  Codes  and  Statutes,  sec.  5070;  Sonth  Dakota,  C.  C,  sec. 
446;  UtahT  Rev.  Stats.,  sees.  3661-3667;  Washington,  Ballinger's  Codes, 
Bee' 4275;  Wyoming,  Eev.  Stats,,  sees.  3255-3264. 


No.  1383. — Order  Directing  Citation  to  Banker  et  al.  in  Pro- 
ceedings to  Recover  Unclaimed  Deposits. 

[Title  of  Court  and  Estate.] 

Upon  reading  and  filing  the  petition  of  W.  A.,  administrator 
of  the  estate  of  the  above-named  decedent,  and  it  satisfactorily 
appearing  therefrom  that  the  C.  S.  and  L.  Society,  doing  business 
and  having  its  office  and  principal  place  of  business  in  the  city 
and  county  of  San  Francisco,  state  of  Californi-a,  has  in  its  pos- 
session, and  under  its  custody  and  control,  a  deposit  of  $1,251.46, 
or  thereabouts,  and  also  certain  books  and  registers  showing  thrf 
identity  of  the  depositor  of  said  sum  with  the  above-named  A.  A., 
deceased,  and  the  fact  that  the  said  sum,  or  any  amount  due  on 
account  of  said  deposit,  is  the  property  of  said  deceased,  which 
property  the  said  C.  S.  and  L.  Society  has  hitherto  refused,  and 
still  refuses,  to  deliver  to  said  administrator,  and  which  books  and 
registers  it  has  hitherto  disallowed  and  still  disallows  said  admin- 
istrator to  inspect  or  examine  for  the  purpose  of  establishing  said 
identity ;  and  it  further  appearing  that  the  full  baptismal  name  of 
said  deceased  was  A.  M.  A.,  although  she  frequently  called  her- 
self and  was  known  as  A.  A.: 

It  is  ordered  that  a  citation  issue  out  of  this  court,  directed 
to  said  C.  S.  Bind  L.  Society,  requiring  the  said  society,  its  presi- 


Orders.  793 

'dent,  secretary,  cashier,  treasurer  or  other  officer  having  the  con- 
trol and  custody  of  any  books  or  registers  of  said  society  con- 
taining any  entries  in  reference  to  A.,  A.  M.,  or  A.  M.  A.,  to  ap- 
pear before  this  court,  in  the  courtroom  of  department  No.  2 
thereof,  at  9:45  o'clock  A.  M.  oi  Tuesday,  the  21st  day  of  Febru- 
ary, 190^,  with  the  aforesaid  books  and  registers  or  papers  of 
any  kind  containing  such  entry  or  entries,  then  and  there  to  be 
examined  on  oath  touching  the  matters  of  said  petition  and  to 
show  cause,  if  any  there  be,  why  an  order  of  this  court  should 
not  be  made  herein  directing  the  said  C.  S.  and  L.  Society  to  pay 
over  and  deliver  to  said  W.  A.,  as  administrator  of  the  estate  of 
A.  A.,  deceased,  the  sum  of  $1,251.46,  or  such  other  sum  as  may 
be  found  to  he  due  from  said  C.  S.  and  L.  Society  on  account  of 
said  deposit  to  said  W.  A.,  as  administrator  of  the  estate  of  said 
decedent. 

NOTE.— California,  C.  C.  P.,  sec.  1461;  Alaska,  Codes,  pt.  4,  c.  82, 
sec.  810;  Arizona,  C.  a,  par.  1724;  Idaho,  C.  C.  P.,  sec.  4118;  Montana, 
C.  C.  P.,  sec.  2537;  Nevada,  Comp.  Laws,  sec.  2884;  North  Dakota,  Pro- 
bate Code,  sec  6379;  Oregon,  Codes  and  Statutes,  sec.  1151;  South  Da- 
kota, Probate  Code,  sees.  149-152;  Washington,  Ballinger's  Codes,  sec. 
6214;  WToming,  Eev.  Stats.,  sec.  4693. 

r 

No.  1383. — Order — Citation  to  Issue — Inheritance  Tax. 
[Title  of  Court  and  Estate.] 

It  appearing  to  this  court  that  there  is  certain  property  be- 
longing to  the  above-entitled  estate,  subject  to  the  tax  imposed 
by  the  laws  of  this  state,  and  upon  which  an  inheritance  tax  is 
due  and  has  not  been  paid,  it  is  ordered,  that  a  citation  issue  to 
A.  B.,  executor  of  the  will  of  S.  D.,  deceased,  to  appear  before  this 
court,  on  the  jc?  day  of  June,  A.  D.  1905,  at  10  o'clock  A.  M. 
of  said  day,  in  the  courtroom  of  this  court,  and  show  cause  why 
the  said  tax  should  not  be  paid. 

NOTE.— Act  of  March  20,  1905;   Stats.,  p.  341,  sees.   17,  20. 

No.  1384. — Order  to  Show  Cause  Why  Punishment  for  Con- 
tempt Should  not  be  Inflicted. 

[Title  of  Court  and  Cause.] 

On  reading  and  filing  the  affidavit  of  J.  B.,  charging  D.  E. 
with  contempt  of  this  court,  and  sufficient  cause  appearing  there- 
for, it  is  ordered  that  the  said  D.  E.  be  and  appear  before  this 
court  in  open  court  at  the  courtroom  thereof,  on  Monday,  May 
12,  1905,  at  ten  o'clock  A.  M.,  to  show  cause  why  he  should  not 


^94  New  Book  of  Forms. 

be  punished  for  contempt  as  in  said  affidavit  alleged.  It  is  or- 
dered that  a  copy  of  said  affidavit,  and  of  this  order,  be  served 
on  the  said  D.  E.  at  least  Hve  days  before  said  twelfth  day  of 
May.*" 

Witness,  etc. 

NOTE.— California,  C.  C.  P.,  sec.  1212. 

No.  1385. — Order — Juror,  Defaulting — Contempt,  in. 
[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California  to  H.  J.,  Greeting : 

You  are  hereby  commanded  to  be  and  appear  before  the  su- 
perior court  of  the  county  of  San  Mateo,  state  of  California,  at 
the  courtroom  of  said  court,  in  the  courthouse,  on  Monday,  the 
twenty-fifth  day  of  January,  ipo6,  at  ten  o'clock  A.  M.,  then  and 
there  to  show  cause  why  you  should  not  be  punished  for  con- 
tempt in  failing  to  attend  the  said  court  as  a  juror. 
(All  courts.) 

NOTE. — California,  C.  a  P.,  sec.  238  (see  Contempt  of  Court). 


No.  1386. — Order — Contempt — Cause  to  Show  in  Defense. 
[Title  of  Court  and  Cause.] 

On  reading  and  filing  the  affidavit  of  G.  B.,  charging  H.  S. 
with  contempt  of  this  court,  and  sufficient  cause  appearing  there- 
for, it  is  ordered  that  the  said  H.  S.  be  and  appear  before  me,  at 
the  courthouse  in  Downieville,  in  said  county,  on  Monday,  May 
12,  igo6,  at  ten  o'clock  A.  M.,  to  shozv  cause  why  he  should  not 
be  punished  as  for  contempt,  as  in  said  affidavit  alleged.  It  is 
ordered  that  a  copy  of  said  affidavit,  and  of  this  order,  be  served 
on  the  said  H.  S.  at  least  five  days  before  the  said  twelfth  day  of 
May,  IQ06. 

NOTES.— California,  C.  C.  P.,  sec.  1212;  Alaska,  Codes,  pt.  4,  c.  58, 
sees.  609-623;  Arizona,  C.  C,  pars.  1430,  1723,  1724,  2760,  2761;  Idaho, 
C.  C.  P.,  sees.  2173,  3819;  Montana,  C.  C.  P.,  sec.  2170;  Nevada,  Comp. 
Laws,  sees.  3.555,  3556,  3669;  New  Mexico,  Comp.  Laws,  sees.  2685,  sub- 
sees.  121,  146,  151;  North  Dakota,  C.  C.  P.,  sec.  5939;  Oregon,  Codes 
and  Statutes,  sec.  665;  Utah,  Rev.  Stats.,  sees.  3361,  3362;  Washington, 
Ballinger's  Codes,  sees.  5800-5811;  Wyoming,  Eev,  Stats.,  sees.  3694, 
3696,  3850,  3949,  4016,  4060,  4072,  4474,  4500,  4536. 


•It  should  be  served  on  the  defendant  personally,  but  in  the  ease  of  a 
corporation  it  may  be  made  on  its  attorney  in  the  case,  if  the  officers  of 
the  corporation  conceal  themselves  to  avoid  service  (E.  L.  &  U.  C.  Co. 
v.  Superior  Court,  66  Cal.  311,  5  Pac,  490),  or  as  is  provided  for  the 
service  of  summons:  Golden  Gate  C.  H.  M.  Co.  v.  Superior  Court,  65 
CaL  188,  3  Pac.  628. 


Orders.  795 


No.   1387.— Order — "Contempt"  in  View  of  Judge — Reciting 

Facts, 

[Title  of  Court  and  Cause.] 

Whereas,  during  the  trial  of  the  above-entitled  action  in  this 
court,  at  Downieville,  Sierra  county,  state  of  California,  on  the 
third  day  of  January,  ipo6,  before  the  undersigned,  a  judge  of 
said  superior  court,  H.  S.,  a  witness,  was  under  examination  on 
the  part  of  plaintiff,  and  while  said  witness  was  giving  his  evi- 
dence, f.  A.,  Esq.,  the  attorney  for  defendant,  objected  to  the 
testimony  then  being  given  by  said  witness,  on  the  ground  that 
said  witness  was  stating  facts  not  zvithin  his  own  k)wwledge,  the 
same  being  hearsay,  which  objection  the  court  sustained;  where- 
upon, S.  D.,  Esq.,  the  attorney  for  plaintiff,  shook  his  finger  at 
the  undersigned,  and,  with  a  low  bow,  stated,  in  a  sneering  man- 
ner, that  the  undersigned  evidently  knew  more  law  than  Black- 
stone,  and  that  the  bar  of  the  state  of  California  would  take  it 
kindly  if  the  undersigned  would  condescendingly  write  a  treatise 
on  evidence;  for  which  conduct  I  then  and  there,  and  do  now, 
adjudge  the  said  S.  D.  guilty  of  contempt,  and  I  order  him  to  pay 
a  fine  of  $500,  and  to  be  imprisoned  one  day  in  the  county  jail 
of  said  county  of  Sierra. 

NOTE.— California,  C.  C.  P.,  sec.  1211;  Alaska,  Codos,  pt.  4,  e.  58,  see. 
609;  Arizona,  C.  C,  pars.  1430,  1723,  1724,  2760,  7261;  Idaho,  C.  C.  P., 
sees.  3819,  3821;  Montana,  C.  C.  P.,  see.  2172;  Nevada,  Comp.  Laws, 
sees.  3556-3670;  New  Mexico,  Comp.  Laws,  sec.  26S5;  subsccs.  121,  146, 
151;  North  Dakota,  C.  C.  P.,  sec.  5935;  Oregon,  Codes  and  Statutes,  sec. 
664;  Utah,  Bev.  Stats,,  sec.  3360;  Washington,  Ballinger's  Codes,  sec. 
5800. 


No.    1388. — Order — Contempt — Conviction   oL 

[Title  of  Court  and  Cause.] 

Whereas  [after  reciting  the  facts,  as  in  the  affidavit  and  order 
for  examination,  and  the  affidavit  charging  disobedience ^  of  the 
order] ,  and  that  an  examination  of  the  charge  was  made  in  pres- 
ence of  the  accused;  it  is  therefore  ordered  that  the  said  H.  S. 
be,  and  he  is,  adjudged  guilty  of  contempt,  in  disobeying  the  lazv- 
ful  order  of  this  court,  as  aforesaid  (having  the  power  to  obey 
said  order),  and  it  is  adjudged  that  the  said  H.  S.  be  imprisoned 
in  the  county  jail  of  said  county  of  Sierra  until  he  complies  with 
such  order. 

(All  courts.) 

NOTE. — California,  C.  C,  P.,  se«.  1219;  Alaska,  Codes,  pt.  4,  c  58,  sees. 
609-623;  Arizona,  C.  C,  pars.  1430,  1723,  1724,  2760,  2761;  Idaho.  C.  C.  P., 
sees.   3819,   3821;   Montana,   a   a   P.,   sec   2172;    Nevada,   Comp.   Laws, 


796  New  Book  of  Forms. 

Bees.  3556,  3670,  3865,  3866;  New  Mexico,  Comp.  Laws,  sec.  2685;  sub- 
Bees.  121,  146,  157;  North  Dakota,  C.  C.  P.,  sec.  5935;  Oregon,  Codes  and 
Statutes,  see.  64;  Ut^h,  Rev.  Btats.^  sec.  3360;  Washiugton,  Balliiiger's 
Codes,  sees.  5S00-5811. 


No.    1389. — Order — Conviction    of    Contempt 
[Title  of  Court  and  Cause.] 

Whereas  [recite  the  facts  cls  stated  in  form  No.  1388  and  the 
disobedience  of  the  order],  and  that  an  order  to  show  cause  why 
said  D.  E.  should  not  be  punished  for  said  alleged  contempt,  and 
the  said  D.  E.  having  appeared  in  response  to  said  order  and  an 
examination  of  the  charge  was  made  in  presence  of  the  accused ; 
it  is  therefore  ordered  that  the  said  D.  E.  be,  and  he  is  adjudged 
guilty  of  contempt  in  disobeying  the  lawful  order  of  this  court 
as  aforesaid  (he  having  the  power  to  obey  said  order),  and  it  is 
adjudged  that  the  said  D.  E.  be  imprisoned  in  the  county  jail  of 
said  city  and  county  for  the  period  of  five  days* 

NOTE.— California,  C.  C.  P.,  see.  1218. 

No.   1390. — Order — Contempt,  Purged  of. 
[Title  of  Court  and  Cause.] 

In  the  Matter  of  Proceedings  Against  H.  C,  for  Contempt. 

The  said  H.  C.  having  this  day  purged  himself  of  the  charge 
of  contempt,  preferred  against  him  by  /.  B.,  constable,  it  is  or- 


*In  California,  it  appears  to  be  settled  that  appeal  does  not  lie.  In 
Ware  v.  Robinson,  9  Cal.  110,  it  was  held  generally,  without  qualification, 
that  appeal  lay.  In  People  v,  O'Neil,  47  Cal.  109,  it  was  held  that 
appeal  lay  in  cases  where  the  court  below  exceeded  its  jurisdiction, 
and  there  are  facts  outside  of  the  record  which  can  only  be  brought  up 
by  a  statement  on  appeaL  In  Larrabee  v.  Selby,  52  Cal.  507,  the  court 
held  that  appeal  would  not  lie.  In  Huerstal  v.  Muir,  62  Cal.  479,  it  was 
held  that  appeal  will  not  lie  in  cases  not  within  People  v.  O  'Neil,  47 
Cal.  109.  In  Tyler  v.  Connolly,  65  Cal.  30,  2  Pac.  414,  it  is  said  that 
People  V.  O'Neil  was  wrongly  decided,  and  appeal  does  not  lie  in  any 
case:  Teller  v.  People,  7  Colo.  451,  4  Pac.  48.  Prior  to  Teller  v.  People, 
7  Colo.  451,  4  Pac.  48,  up  to  the  latest  California  case,  no  reason  has 
been  given  why  appeal  does  not  lie  for  such  judgments.  Those  cases 
appear  to  have  settled  the  law,  but  no  reason  has,  nor  probably  ever  will 
be,  given  why  appeal  ought  not  to  be  allowed.  In  People  v.  Kuhlman, 
118  Cal.  140,  50  Pac.  382,  it  is  said  that  "as  a  general  rule,  the  judg- 
ment and  orders  of  a  court  or  judge,  made  in  cases  of  contempt,  are 
final  and  conclusive,"  which  is  a  sign  of  some  doubt  about  the  sound- 
ness of  the  absence  of  reasoning  in  the  early  cases.  In  Ex  parte  Clarke, 
126  Cal.  235,  77  Am.  St.  Rep.  176,  58  Pac.  546,  46  L.  R.  A.  835,  it  is 
said  that  when  a  court  has  made  "an  unlawful"  order,  habeas  corpus 
may  be  used  to  correct  the  error. 


Orders. 


797 


dcred  that  the  said  H.  C.  be,  and  he  is,  acquitted  of  said  chaige 
and  he  is  hereby  discharged  from  arrest. 
(All  courts.)  ' 

NOTE. — When  the  person  charged  showa  that  he  is  not  guilty,  or  ad- 
mits the  thiug  chargi'd,  but  shows  that  he  had  a  right  to  do  the  act 
complaiutd  of,  or  that  he  acted  under  irresistible  compulsion,  or  was  not 
in  his  right  mind,  he  is  said  to  have  purged  himself  of  the  charge, 
upon  the  same  theory  that  a  physic  evacuates  the  bowels,  when  every 
court  knoweth  tliat  sometimes  it  doth  not. 


No.  1391. — Order  Directing  Attachment  Against  Administra- 
tor for  not  Rendering  Account — Contempt. 

[Title  of  Court  and  Estate.] 

It  appearing  to  the  court  that  C.  D.,  the  administrator  of  the 
estate  of  Ji.  f.,  deceased,  has  neglected  to  render  an  exhibit  within 
thirty  days  after  the  expiration  of  the  time  mentioned  in  the 
notice  to  the  creditors  of  said  estate,  and  a  citation  having  been 
issued  requiring  said  C.  D.  to  appear  and  show  cause  why  an  at- 
tachment shall  not  issue  to  compel  him  to  render  said  account, 
and  the  said  C.  D.  has  failed  to  appear  and  render  said  account 
or  show  cause  why  attachment  should  not  issue  as  directed  in  said 
citation,  and  the  citation  having  been  served  and  returned  in  the 
manner  and  form  as  is  by  law  provided,  it  is  ordered  that  a  war- 
rant of  attachment  issue,  and  that  said  C.  B.  be  arrested  and 
brought  before  this  court  to  show  cause  why  he  should  not  be 
committed  for  contempt  of  court  for  not  obeying  said  citation. 

NOTE. — In  such  cases  a  citation  must  be  first  issued,  served  and  re- 
turned requiring  the  person  to  appear  and  show  cause  why  a  warrant 
of  attachment  should  not  issue:  Cal.  C.  C.  P.,  sees.  1627,  1628;  Alaska, 
Codes,  pt.  4,  c.  58,  see.  609;  Arizona,  C.  C,  pars.  1859,  1860;  Idaho, 
0.  G.  P.,  sees.  4247,  4248;  Montana,  C.  C.  P.,  sees.  2786,  2789;  Nevada, 
Comp.  Laws,  sec.  2976;  North  Dakota,  Probate  Code,  sees.  6362-6371; 
Oregon,  Codes  and  Statutes,  sees.  1200,  1201,  1203;  South  Dakota,  Pro- 
bate Code,  sees.  272-290;  Washington,  Ballinger's  Codes,  seca.  6320, 
6321;  Wyoming,  Eev.  Stats.,  sees.  4717,  4718. 


No.    1392. — Order   Committing   Administrator   for   Contempt 
for  Disobeying  Order  of  Court. 

[Title  of  Court  and  Estate.] 

An  order  having  been  made  by  this  court  that  C.  D.,  admin- 
istrator of  the  estate  of  B.  F.,  deceased,  render  the  account  of  said 
estate  required  to  be  rendered  within  thirty  days  after  the  ex- 
piration of  the  time  mentioned  in  the  notice  to  the  creditors  of 


798  New  Book  of  Forms. 

said  estate  within  which  claims  must  be  exhibited,  and  said  time 
having  elapsed  before  said  order  was  made;  and  the  said  C.  D. 
having  failed  to  render  said  account  as  ordered  by  the  court; 
and  the  said  C.  D.  having  been  cited  to  appear  and  show  cause 
wh^'  a  warrant  of  attachment  should  not  issue  to  compel  him  to 
render  said  account  (the  said  citation  having  been  issued;  served 
and  returned  as  is  by  law  required),  and  the  said  C.  D.  brought 
mto  court,  who  then  and  there  refused  to  render  said  account, 
it  is  ordered  that  said  C.  D.  be,  and  he  is  hereby,  adjudged  to  be 
in  contempt  of  this  court,  and  that  he  be  committed  to  the  cus- 
tody of  the  sheriff  of  the  county  of  Butte  until  he  obeys  the  said 
order  of  this  court. 

NOTE. — "Whenever  an  executor  or  administrator  or  guardian  is  com- 
mitted for  contempt  in  disobeying  any  lawful  order  of  the  court,  or  a 
judge  thereof,  and  he  remains  in  custody  for  thirty  days  without  obey- 
ing such  order,  etc.,  the  court  may  by  order  ' '  reciting  the  facts ' '  re- 
voke his  letters  and  appoint  (by  the  same  orders)  some  other  person 
entitled  thereto  in  his  stead:  Cal.  C.  G.  P.,  sees.  1627,  1628,  1630  and 
1721,  as  to  revoking  letters;  Alaska,  Codes,  pt.  4,  c.  58,  sees.  609-623; 
Arizona,  C.  C,  pars.  18-59,  1860;  Idaho,  C.  C.  P.,  sees.  4247,  4248;  Mon- 
tana, C.  C.  P.,  sees.  2786,  2789;  Nevada,  Comp.  Laws,  sec.  2970;  North 
Dakota,  Probate  Code,  sees.  6362-6371;  South  Dakota,  Probate  Code,  sees. 
272-290;  Washington,  Ballinger's  Codes,  sees.  6320,  6321;  Oregon,  Codes 
nud  Statutes,  sees.  1200,  1203,  1210;  Wyoming,  Eev.  Stats.,  sees.  4717, 
4718, 


No.   1393. — Order  Revoking  Letters  After    Commitment    for 

Contempt. 

[Title  of  Court  and  Estate.] 

Be  it  known  that  on  June  j,  1906,  C.  D.,  the  executor  of  the 
will  of  £.  F.,  deceased,  was  ordered  by  this  court  to  file  an  ac- 
count of  his  administration  within  ten  days  from  May  20,  ipo6, 
which  order  was  not  obeyed ;  whereupon  the  said  C.  D.  was  cited 
to  answer  for  contempt  of  this  court  because  of  said  disobedience 
and  after  a  full  hearing  he  was  committed  to  the  custody  of  the 
sheriff  of  said  county  until  he  obeyed  said  order,  and  has  re- 
mained in  said  custody  for  thirty  days  without  obeying  said  order, 
or  purging  himself  otherwise  of  contempt;  now,  for  the  reasons 
aforesaid,  the  letters  issued  to  him,  the  said  C.  D.,  as  executor 
as  aforesaid,  are  hereby  revoked.  > 

•  NOTE. — In  such  cases  an  executor,  administrator  or  guardian  may 
be  removed  for  disobeying  the  order  of  a  court  or  a  judge.  The  order 
must  recite  the  facts:  Cal.  C.  C.  P.,  sec.  1721;  Arizona,  C.  C.  P.,  par. 
1940;  Idaho,  C.  C.  P.,  sec.  4322;  Montana,  C.  C.  P.,  see.  2928;  North 
Dakota,  Probate  Code,  sees.  63()2-6C;71;  isouth  Dakota,  Probate  Code, 
sec.  343;  Utah,  Rev.  Stats.,  sec.  3840. 


Orders.  79) 


No.  1394. — Order  Appointing  Executor  in  Place  of  Executor 
Removed,    Because    of    Contempt   of    Court. 

[Title  of  Court  and  Estate.] 

[The  same  as  in  No.  1393  to  the  end:  then  continue:]  And 
C.  L.  M.  is  hereby  appointed  administrator  of  the  will  of  said 
deceased  in  place  of  the  said  C.  D.,  and  the  clerk  of  this  court  is 
ordered  to  issue  said  letters  upon  his,  the  said  C.  L.  M.,  filing  a 
bond  as  by  law  required  in  the  sum  of  $20,000,  to  be  approved  by 
the  judge  of  this  court. 

NOTE. — The  court  hns  power  to  include  in  its  order  of  revoking  let- 
ters an  order  appointingr  a  person  to  the  trust  reposed  in  the  person 
removed:  Cal.  C.  C.  P.,  sec.  1721;  Arizona,  C.  C.  P..  par.  1940;  Idaho, 
C.  C.  P.,  sec.  4322;  Montana,  C.  C.  P.,  see.  292S;  North  Dakota,  Probate 
Code,  sees.  6362-6371;  South  Dakota,  Probate  Code,  sec.  343;  Utah,  Rev. 
Stats.,  sec.  3840. 


No.  1395. — Order — Creditors,  Notice  to — Publication  of. 

[Title  of  Court  and  Estate.] 

It  is  ordered  that  notice  to  the  creditors  of  T.  J.,  deceased,  re- 
quiring all  persons  having  claims  against  the  said  deceased  to 
exhibit  them,  with  the  necessary  vouchers,  to  the  administratrix 
of  the  estate  of  said  deceased,  be  given  by  said  administratrix  bv 
publication  in  the  D.  E.  B.,  a  newspaper  printed  and  published 
in  the  city  and  county  of  San  Francisco,  at  least  once  a  week  for 
four  weeks. 

NOTE.— California,  C.  C.  P.,  sec.  1490;  Alaska,  Codes,  pt.  4.  c.  S4, 
sees.  820-829;  Arizona,  C.  C,  par.  1739;  Idaho,  C.  C.  P.,  sec.  4133; 
Montana,  C.  C.  P.,  sec.  2600;  Nevada,  Comp.  Laws.  sec.  2S92;  New 
Mexico,  Comp.  Laws,  sec.  1%7;  North  Dakota,  Probate  Code,  sees. 
6399-6418;  Oregon,  Codes  and  Statutes,  sec.  1158;  South  Dakota,  Pro- 
bate Code,  sec.  167;  Utah,  Rev.  Stats.,  see.  3848;  Washington,  BalUnger's 
Codes,  sec.  6226;  Wyoming,  Rev.  Stats.,  sec.  4747. 


No.  1396. — Order — Creditors,  Notice  to. 

[Title  of  Court  and  Estate.] 

It  is  ordered  that  notice  to  the  creditors  of  said  decedent,  pur- 
suant to  section  7^90  of  the  Code  of  Civil  Procedure,  be  pub- 
lished once  a  week  for  eight  weeks. 

NOTE. — In  California,  the  executor  or  administrator  must,  imme- 
diately after  his  appointment,  publish  in  some  newspaper  of  the  county, 


8oo  New  Book  of  Forms. 

if  there  be  one,  if  not,  then  in  such  newspaper  as  may  be  designated 
by  the  court,  a  notice  to  the  creditors  of  the  decedent,  requiring  them 
to  exhibit  their  claims  with  the  necessary  vouchers,  to  the  giver  of 
the  notice  at  the  place  of  his  residence  or  business,  to  be  specified  in  the 
notice;  such  notice  must  be  published  as  often  as  the  judge  or  court  shalJ. 
direct,  but  not  less  than  once  a  week  for  four  weeks.  [The  court  or 
judge  may  also  direct  additional  notice  by  publication  or  posting.  In 
case  such  executor  or  administrator  resigns,  or  is  removed,  before  the 
time  expressed  in  the  notice,  his  sncces.-nr,  must  give  notice  only  for 
the  unexpired  time  allowed  for  such  pi: mentation.]  Cal.  C.  C.  P.,  sec. 
1490. 


No.  1397. — Order — Creditor's  Claim — Allowing  Payment. 

[Title  of  Court  and  Estate.] 

It  appearing  to  the  court  that  /.  S.  had  no  notice  of  the  death 
of  said  deceased,  or  of  the  order  of  publication  of  notice  to  cred- 
itors, or  of  publication  of  notice  to  creditors  herein  until  after 
the  time  had  expired  to  present  claims  [zvith  an  exception,  if 
any],  and  the  decree  of  distribution  in  said  estate  not  having 
been  entered,  it  is  ordered  that  the  said  claim  may  be  presented 
to  the  executor  of  said  estate  with  the  same  effect  as  if  it  had 
been  presented  before  the  time  had  expired  for  the  presentation  of 
claims. 

NOTE. — In  California  all  claims  arising  upon  contracts,  whether  the 
same  be  due,  not  due,  or  contingent,  must  be  presented  within  the  time 
limited  in  the  notice,  and  any  claim  not  so  presented  is  barred  forever; 
provided,  however,  that  when  it  is  made  to  appear  by  the  affidavit  of 
the  claimant,  to  the  satisfaction  of  the  court,  or  a  judge  thereof,  that 
the  claimant  had  no  notice  [of  the  time  in  which  to  present  his  claim] 
by  reason  of  being  out  of  the  state,  it  may  be  presented  at  any  time 
before  a  decree  of  distribution  is  entered:  Cal.  C.  C.  P.,  sec.  1493; 
Alaska,  Codes,  pt.  4,  c.  84,  sees.  820-829;  Arizona,  C.  C,  par.  1742;  Idaho, 
C.  C.  P.,  sec.  4136;  Montana,  C.  C.  P.,  sec.  2603;  Nevada,  Comp.  Laws, 
sec.  2893;  North  Dakota,  Probate  Code,  sees.  6399-6418;  Oregon,  Codes 
and  Statutes,  sec.  1159;  South  Dakota,  Probate  Code,  sees.  167-178;  Utah, 
Eev.  btats.,  see.  3851;  Washington,  Ballinger's  Codes,  see.  6228;  Wyo- 
ming, Eev.  Stats.,  sec.  4797. 


No.   1398. — Order  for  the  Payment  of  Debts, 
[Title  of  Court  and  Estate.] 

It  appearing  from  the  settlement  of  the  administrator's  ac- 
count filed  within  thirty  days  after  the  expiration  of  the  time  for 
the  presentation  of  claims  that  the  entire  property  of  the  estate 
has  been  sold  and  the  net  proceeds,  amounting  to  $10,824.50,  are 
in  his  possession,  which  amount,  together  with  other  money,  to 
wit,  $8,842,  in  his  possession  as  stated  in  said  account  amounts 


Orders.  8oi 

to  $1^,6^18.50;  it  also  appearing  that  the  debts  of  the  estate 
aiTiount  to  $22,816,  and  the  entire  expenses  of  administration 
taxes  amount  to  $1,822.50. 

It  is  ordered  that  the  said  $1,822.50,  be  deducted  from  said 
$19,648.50,  and  the  $17,826  remaining  be  paid  to  said  creditors 
as  follows :  [Distributing  the  amount  so  that  each  creditor  will 
receive  his  proportion.^ 

NOTE. — Under  the  circumstances  related  the  estate  is  exhausted  and 
each  creditor  receives  his  proportion;  and  the  court  must  sfX'cify  in  the 
decree  the  amount  to  be  paid  to  each  creditor.  Such  account  is  final, 
and  the  administrator  is  entitled  to  his  discharge  upon  proof  showing 
that  such  payments  have  been  made:  Cal.  C.  C.  P.,  sec.  1647;  Alaska, 
Codes,  pt.  4,  "c.  86,  sees.  859-871;  Arizona,  C.  C,  par.  1879;  Idaho,  C.  C. 
P.,  sec.  4263;  Montana,  C.  C.  P.,  sec.  2814;  Nevada,  Comp.  Laws,  sec. 
2985;  North  Dakota,  Probate  Code,  sec.  6427;  Oregon,  Codes  and  Stat- 
utes, sec.  1201;  South  Dakota,  Probate  Code,  sec.  295;  Utah,  Rev. 
Stats.,  sec.  3873;  Washington,  Ballinger's  Codes,  sec.  6337;  Wyoming, 
Bev.  Stats.,  sec  4730. 


No.  1399. — Order — Claim — Referred — Referee, 

[Title  of  Court  and  Estate.] 

The  administrator  of  said  estate,  and  /.  B.,  who  has  presented 
a  claim  against  said  estate,  having  agreed  that  the  matter  of  lia- 
bility of  said  estate  for  said  claim  be  referred  to  H.  S.  for  investi- 
gation, it  is  ordered  that  said  matter  be  referred  to  the  said  H. 
S.,  for  investigation  and  report. 

NOTE.— California,  C.  C.  P.,  sec.  1636;  Alaska,  Codes,  pt.  4,  c.  20, 
sec.  211;  Arizona,  C.  C,  par.  1870;  Idaho,  C.  C.  P.,  sec.  4252;  Montana, 
C.  C.  P.,  sec.  2794;  Nevada,  Comp.  Laws,  sec.  2992;  North  Dakota, 
Probate  Code,  sees.  6412-6414;  Sooth  Dakota,  Probate  Code,  sec.  188; 
Utah,  Rev.  Stats.,  sec.  3947;  Washington,  Ballinger's  Codes,  see.  3660: 
Wyoming,  Rev.  Stats.,  sec.  2724. 


No,     1400. — Order- — Family — Support    Until    Inventory    Re- 
turned. 

[Title  of  Court  and  Estate.] 

On  reading  and  filing  the  petition  of  M.  J.,  the  administra- 
trix of  the  estate  of  T.  J.,  deceased,  praying  that  an  allowance 
for  the  support  of  the  family  of  said  deceased  be  made  out  of 
the  estate  of  said  deceased,  until  the  return  of  the  inventorv,  it 
is  hereby  ordered  that  the  sum  of  one  hundred  dollars  per  month, 
gold  coin  of  the  United  States,  be  appropriated  out  of  said  es- 
tate for  the  support  of  said  family,  until  the  inventory  be  re- 
turned, and  M.  J.,  the  administratrix  of  the  estate  of  said  de- 
New  Forms — 51 


8o2  New  Book  of  Forms. 

ceased,  is  hereby  ordered  to  pay  the  same  monthly,  on  the  eigh- 
teenth day  of  each  and  every  month,  to  the  zvidow  of  said  de- 
ceased, until  said  inventory  be  returned,  or  until  the  further  order 
of  the  court. 

NOTE. — In  California,  when  a  person  dies,  leaving  a  widow  or  minor 
children,  the  widow  or  children,  until  letters  are  granted  and  the  in- 
ventory is  returned,  are  entitled  to  remain  in  possession  of  the  home- 
stead, of  all  the  wearing  apparel  of  the  family,  and  of  all  the  house- 
hold furniture  of  the  decedent,  and  are  also  entitled  to  a  reasonable 
provision  for  their  support,  to  be  allowed  by  the  court,  or  a  judge  there- 
of. Cal.  C.  C.  P.,  sec.  1464;  Alaska,  Codes,  pt.  4,  c.  83,  sees.  815-819; 
Arizona,  C.  C,  par.  1725;  Idaho,  C.  C.  P.,  see.  4119;  Montana,  C.  C.  P., 
sec.  2580;  Nevada,  Comp.  Laws,  sec.  2885;  North  Dakota,  Probate  Code, 
sees.  6391-6398;  Oregon,  Codes  and  Statutes,  sec.  1153;  South  Dakota, 
Probate  Code,  sees.  153-161;  Utah,  Eev.  Stats.,  sec.  3846;  Washington, 
Ballinger's  Codes,  sec.  6219;  Wyoming,  Eev.  Stats.,  sec.  4733. 


No.  1 40 1. — Order — Family  Allov7ance — Property  for  Its  Use. 
[Title  of  Court  and  Estate.] 

M.  J.,  the  administratrix  of  the  estate  of  T.  J.,  deceased,  hav- 
ing this  day  made  application  to  the  judge  of  this  court,  by  peti- 
tion, for  an  order  setting  apart,  for  the  use  of  the  family  of  the 
said  deceased,  all  personal  property  which  is  by  law  exempt  from 
execution,  and  making  family  allowance,  and  the  matter  having 
been  duly  considered,  it  is  hereby  ordered  that  the  following  arti- 
cles of  personal  property,  to  wit,  one  parlor  stove,  one  cooking- 
stove,  one  large  mirror,  two  small  mirrors,  Hve  carpets,  four  bed- 
steads, beds  and  bedding,  twelve  chairs,  three  tables,  one  desk 
and  one  sofa,  be,  and  the  same  are  hereby,  set  apart  for  the  use 
of  the  family  of  the  said  deceased;  and  that  the  same  shall  not 
be  subject  to  administration. 

And  it  is  further  ordered  that  an  allowance  of  one  hundred 
dollars  per  month,  gold  coin  of  the  United  States,  be,  and  is 
hereby,  made  for  the  maintenance  of  said  family,  out  of  the  es- 
tate, during  the  progress  of  the  settlement  of  said  estate,  and  the 
administratrix  of  said  estate  is  hereby  ordered  to  pay  the  same 
monthly,  on  the  sixth  day  of  each  and  every  month,  out  of  the 
funds  of  said  estate  in  preference  to  all  other  charges,  except 
funeral  charges  and  expenses  of  administration,  until  the  further 
order  of  this  court. 

NOTE.— California,  C.  C,  P.,  see.  1465;  Alaska,  Codes,  pt.  4,  e.  82, 
sees.  815-819;  Arizona,  C.  C,  par.  1726;  Idaho,  C.  C.  P.,  sec.  4120;  Mon- 
tana, C.  C.  P.,  sec.  2581;  Nevada,  Comp.  Laws,  see.  2886;  North  Dakota, 
Probate  Code,  sees.  6391-6399;  Oregon,  Codes  and  Statutes,  sec.  1154; 
South  Dakota,  Probate  Code,  sefs.  153-161;  Washington,  Ballinger's 
Codes,  sec.  6220;  Wyoming,  Rev,   Stats.,  sec.  4736. 


Orders.  803 


No.   1402. — Order — Family,  Estate  Paid  to  It 
[Title  of  Court  and  Estate.] 

The  petition  of  M.  S.,  widow  of  H.  S.,  said  deceased,  being- 
presented  to  this  court,  showing  that  there  are  six  minor  children 
of  deceased  surviving  him,  to  wit  [natning  them  and  giving 
ages] ,  who  are  without  means  of  support ;  and  it  appearing,  from 
the  inventory  returned  by  the  appraisers  of  said  deceased,  that 
the  value  of  the  estate  does  not  exceed  $1,500,  it  is  hereby  ordered 
and  decreed,  that  after  the  payment  of  the  expenses  of  his  last 
sickness,  funeral  charges  of  said  deceased,  and  of  the  expenses  of 
administration,  amounting,  as  appears  by  the  account  of  the 
administratrix  filed  herein,  to  the  sum  of  three  hundred  dollars, 
the  whole  of  the  estate  being  the  amount  of  one  thousand  four 
hundred  dollars,  as  shown  by  said  inventory,  be  assigned  for  the 
use  and  support  of  said  minor  children,  and  that  no  further  pro- 
ceedings be  had  in  this  administration. 

And  it  is  further  ordered  that  the  whole  of  said  property  so 
set  apart,  being  the  property  and  estate  so  set  forth  in  the  inven- 
tory filed  herein,  less  the  amount  necessary  to  pay  said  expenses 
and  charges,  be,  and  the  same  is  hereby,  declared  to  be  the  prop- 
erty of  said  minor  children  and  the  said  widow,  the  whole  amount 
thereof  is  hereby  decreed  to  be  the  property  of  said  minor  chil- 
dren and  widow  to  be  used  for  their  support. 

NOTE. — In  California,  when  the  value  of  the  estate  is  not  over  one 
thousanri  five  hundred  dollars,  and,  if  the  deceased  left  a  widow  and 
minor  children,  the  court  orders  notice  given  to  show  cause  why  the 
whole  estate  should  not  be  set  over  to  said  wife  and  children,  the  ex- 
penses of  administration  and  of  the  deceased's  last  sickness  being  first 
paid.  Notice  of  the  application  is  given  the  same  as  upon  the  filing 
of  an  account.  [See  notice  of  same.]  If  there  is  no  widow  then  said 
children  take  it  all.  If  no  children  then  the  widow  takes  it:  Cal.  C.  C. 
P.,  sec.  1469;  Alaska,  Codes,  pt.  4,  c.  8H,  sees.  815-819;  Arizona.  C  c" 
par.  1730;  Idaho,  C.  C.  P.,  sec.  4124;  Montana,  C.  C.  P.,  sec.  2585;  Ne- 
vada, Comp.  Laws,  sees.  2890-3506 ;  North  Dakota,  Probate  Code, '  sees. 
6391-6398;  Oregon,  Codes  and  Statutes,  sec.  1156;  South  Dakota.  Pro- 
bate Code,  sees.  162-166:  Utnh,  Rev.  Laws,  1903,  p.  51;  Washington, 
Ballinger's  Codes,  sec.  6215;  Wyoming,  Rev.  Stats.,  sec.  4739. 


No.    1403. — Order — Guardian's   Application   for   Appointment 

— Notice  of. 

[Title  of  Court  and  Estate.] 

M.  J.,  the  mother  of  W.  J.,  C.  J.,  and  E.  J.,  minors,  children 
of  T.  J.,  late  of  the  city  and  county  of  San  Francisco,  deceased, 
having  tliis  day  made  application  by  petition  to  the  superior  court 


8o4  New  Book  of  Forms. 

of  this  city  ard  county  for  the  appointment  of  said  M.  J.  as  the 
guardian  of  die  persons  and  estates  of  said  minors,  it  is  hereby 
ordered  and  directed  that  personal  notice  of  said  application  be 
served  on  F.  W.  and  H.  W.  [if  the  person  under  whose  care  the 
minors  are  he  not  the  applicant  for  letters  then  add  the  name 
of  such  person],  by  citation,  at  least  tive  days  before  the  tenth 
day  of  December,  ipo6,  requiring  said  parties  to  appear  before 
said  court,  at  the  courtroom,  at  the  City  Hall,  in  said  city  and 
county,  on  said  tenth  day  of  December,  ipo6,  at  eleven  o'clock 
A.  M.,  then  and  there  to  show  cause,  if  any  they  have,  why  the 
said  M.  J.  should  not  be  appointed  the  guardian  of  the  persons 
and  estates  of  the  said  minors,  W.  J.,  C.  J.  and  E.  J. 

NOTE.-  -California,  C.  C.  P.,  sec.  1747;  Alaska,  Codes,  pt.  4,  e.  88, 
Bccs.  887-917;  Arizona,  C.  C,  par.  1954;  Idaho,  C.  C.  P.,  sec.  43.39;  Mon- 
tana, C.  C.  P.,  sec.  2950;  Nevada,  Comp.  Laws,  sees.  559,  560;  New 
Mexico.  Comp.  Laws.  sees.  1434-1477;  North  Dakota,  Probate  Code, 
Bee.  5266;  Oregon,  Codes  and  Statutes,  sec.  5259;  South  Dakota,  Probate 
Code,  sec.  366;  Utah,  Rev.  Stats.,  see.  3994;  Washingrton,  Ballinger's 
Codes,  sec.  6395;  Stats.,  1903,  p.  242;  Wyoming,  Be  v.  Stats.,  see.  4866. 


No.    1404. — Order    Providir-or   for   Temporary    Custody    of   a 

Minor. 

[Title  of  Court  and  Estate.] 

It  is  ordered  that  between  the  date  of  this  order  and  the  date 
of  the  final  order  hereafter  to  be  made  in  the  matter  of  the  peti- 
tion of  A.  B.,  for  letters  of  guardianship  of  the  person  and  es- 
tate of  M.  C.  L.,  the  minor  orphan,  daughter  of  C.  B.  L.,  de- 
ceased, that  she,  the  said  M.  C.  L.,  be  taken  into  the  temporary 
custody  bv  the  sheriff  of  the  county  of  Alameda,  and  be  by  him 
placed  in  the  care  of  the  W.  C.  T.  U.  until  the  further  order  of 
this  court. 

jq-QTE. — The  court  has  authority  to  make  such  order  upon  verified 
petition  or  affidavit:  Cal.  C.  C.  P.,  sec.  1747;  Alaska,  Codes,  pt.  4,  c.  87, 
sees.  887-917;  Arizona,  C.  C,  par.  1945;  Idaho,  C.  C.  P.,  sec.  4339;  Mon- 
tana, C.  C.  P.,  sec.  2950;  Nevada,  Comp.  Laws,  sees.  556-559;  North  Da- 
kota|  Probate  Code,  sees.  366-382;  Oregon,  Codes  and  Statutes,  see.  5259; 
South  Dakota,  Probate  Code,  sees.  6537-6587;  Utah,  Rev.  Stats.,  sec. 
3994;  Washington,  Ballinger's  Codes,  sec.  6395;  Laws  1903,  p.  242; 
Wyoming,  Rev.  Stats.,  sec.  4866. 


No.  1405. — Order — Guardian  Appointed, 
[Title  of  Court  and  Estate.] 

The  petition  of  M.  J.,  for  the  appointment  of  herself  as  the 
guardian  of  the  person  and  estate  of  said  minors,  coming  on  regu- 
larly to  be  heard  on  this  tenth  day  of  December,  1905,  upon  due 


Orders.  805 

proof  to  the  satisfaction  of  said  court  that  due  notice  had  been 
given  to  the  relatives  of  the  said  minors  residing  in  this  city  and 
county,  and  to  the  person  under  whose  care  said  minors  are,  as 
required  by  law,  and  as  directed  by  this  court,  and  it  duly  ap- 
pearing to  the  court  that  said  minors  are  residents  of  the  city  and 
county  of  San  Francisco,  and  that  they  have  estates  within  the 
city  and  county  of  San  Francisco,  which  need  the  care  and  allen- 
tion  of  some  fit  and  proper  person,  and  which  estate  is  of  the 
value  of  ten  thousand  dollars : 

It  is  hereby  ordered,  that  said  M.  J.  be.  and  she  is  hereby,  ap- 
pointed guardian  of  the  persons  and  estates  of  said  minors,  IV.  J., 
C.  J.  and  H-  /.,  and  that  letters  of  guardianship  of  the  persons 
and  estates  of  said  minors  be  issued  to  her  upon  her  giving  bond 
to  each  of  said  minors  in  the  penal   sum  of  $10,000. 


No.   1406. — Order  Commanding  a   Sheriff  to  Take   a   Minor 
from  the  Custody  of  a  Person. 

[Title  of  Court  and  Estate.] 

Upon  reading  the  affidavit  [or  petition]  of  A.  B.,  filed  in  the 
above-entitled  matter,  it  is  ordered  that  the  sheriff  of  said  county 
take  from  the  custody  of  A.  B.  L.,  the  minor  girl,  M.  C.  B.  L., 
and  place  said  minor  in  the  custody  and  care  of  the  W.  C.  T.  U. 
until  the  further  order  of  this  court. 

NOTE. — At  the  time  of  making  an  order  for  the  enstody  of  a  minor 
child,  pending  the  hearing  of  a  petition  for  letters  of  guardianship  for 
its  person  or  estate,  the  court  may  make  such  order  upon  affidavit  or 
petition,  showing  that  the  minor  will  be  imperiled  in  its  absence; 
Cal.  C.  C.  P.,  see.  1747;  Arizona,  C.  C,  par.  1945;  Idaho.  C.  C.  P., 
see.  4339;  Montana,  C.  C.  P.,  sec.  2950;  Nevada,  Comp.  Laws,  sees. 
559,  560;  North  Dakota,  Probate  Code,  sees.  6537-6587;  Oregon,  Codes 
and  Statutes,  sec.  5259;  South  Dakota.  Probate  Code,  sec.  366;  Utah, 
Bev.  Stats.,  sec.  3994;  Washington,  Ballingcr's  Codes,  see.  6395;  Laws, 
1903,  p.  242;  Wyoming,  Eev.  Stats.,  sec.  4866. 


No.  1407. — Order  Appointing  Guardian  of  Minor — Clause  In- 
serted in  Order  at  Request  of  Minor. 

[Title  of  Court  and  Estate.] 

And  it  is  further  ordered,  at  the  request  of  said  guardian,  that 
he,  the  said  guardian,  cause  said  minor  to  pass  through  the  pub- 
lic schools  of  said  city  and  county,  ending  with  the  hoys'  high 
scJiool.  Then  to  give  him  a  three  years'  course  in  a  high  grade 
bnsiness  college;  that  part  of  said  course  shall  be  either  the 
Graham  or  Pitman  system  of  shorthand ;  that  oil  his  estate,  con- 


8o6  New  Book  o?  Forms. 

sisting  of  $100,000  in  United  States  gold  coin,  shall  be  invested 
in  United  States  2  fer  cent  bonds.  That  said  bonds  sb-^ll  be 
placed  in  a  safe  deposit  box  selected  by  the  judge  of  this  court 
[Department  No.  p],  to  which  there  shall  be  only  one  key,  and 
that  key  shall  be  delivered  to  the  exclusive  custody  of  said  judge ; 
that  said  safe  deposit  box  shall  not  be  opened  but  once  a  year 
until  said  minor  reaches  his  majority,  except  in  case  of  the  death 
of  said  guardian  or  said  judge,  the  said  box  may  be  opened  by 
the  successor  of  said  judge  and  two  other  judges,  and  said  bonds 
counted  and  then  restored  to  said  box  and  the  key  delivered  to 
said  successor.  At  the  annual  opening  of  said  box  the  said  guard- 
ian and  said  judge  shall  cut  the  coupons  due  in  the  presence 
of  each  other,  return  the  said  bonds  to  and  lock  said  box,  and 
deliver  said  key  to  said  judge.  The  proceeds  of  said  coupons,  to 
wit,  $2,000,  shall  be  expended  as  far  as  it  may  be  necessary  for 
the  "care,"  "treatment,"  ".education"  and  "welfare"  of  the  said 
minor,  and  for  the  "care"  and  "custody"  of  his  said  property; 
provided  if  his  total  expenses  are  greater  than  ^75  a  month  in- 
cluding the  guardian's  compensation  for  annually  assisting  in 
cutting  said  coupons,  all  the  remainder  of  said  $2,000  shall  be 
annually  put  into  the  said  box  in  a  buckskin  bag  to  accumulate 
until  said  minor  reaches  his  majority,  and  has  by  experience 
learned  what  it  is  to  be  in  want  of  money  and  how  difficult  it  is 
to  safely  preserve  it  when  it  is  your  own,  but  in  the  custody  of 
others. 

NOTE. — The  performance  of  sneh  conditions  are  a  part  of  the  duties 
of  the  ^ardian.  and  for  their  performance  he  and  his  sureties  on  his 
bond  are  responsible:  C.  C.  P.,  sec.  1755.  This  clause  will  very  much 
lessen  the  risk  of  the  guardian's  sureties,  and  also  enable  him  to  obtain 
low  rates  from  surety  companies.  If  unusual,  it  is  entirely  practicable 
and  more  assuring  than  the  usual  course  of  procedure:  Id.,  sec.  1757; 
Alaska,  fodes,  pt.  4,  c.  88,  sees.  887-917;  Arizona,  C.  C,  par.  1963.  1964; 
Idaho,  C.  C.  P.,  sees.  4347-4349;  Montana,  C.  C.  P.,  sec.  2958;  Nevada, 
Comp.  Laws,  sec.  570;  North  Dakota,  Probate  Code,  sees.  6537-6587; 
South  Dakota,  Probate  Tode,  sees.  366-378;  Utah,  Eev.  Stats.,  sees.  3988- 
3999;  Wyoming,  Rev,  Stats.,  sees.  4874-4876. 


No.  1408. — Order  Appointing  Day  for  Hearing  Application  for 
Letters  of  Guardianship  of  Incompetent  Person. 

[Title  of  Court  and  Estate.] 

It  is  ordered  that  Monday,  June  3,  ipo6,  at  10  o'clock  A.  M., 
be  appointed  for  hearing  the  application  of  A.  D.  for  letters  of 
guardianship  of  the  person  of  C.  D.,  who  is  alleged  to  be  men- 
tally incompetent,  and  that  the  clerk  of  this  court  give  notice  of 
the  time  and  place  of  said  hearing  to  the  said  C.  D.  by  citation, 
and  it  is  ordered  that  the  citation  be  served  at  least  ten  days  prior 


Orders.  807 

to  the  time  set  for  the  hearing,  and  it  is  further  ordered  that  it 
be  served  by  the  sheriff  of  this  county,  and  the  sheriff  is  directed 
to  say  to  the  said  C.  D.  that  he  must,  if  able,  attend  in  court  at 
the  time  of  said  hearing. 

NOTE. — The  statute  directs  notice  to  be  jriven  at  least  five  days 
before  the  hearing,  and  directs  that  the  said  incompetent  person  must, 
if  able  to  attend,  be  produced  at  the  hexring:  Cal  C.  C.  P.,  sec.  176.3; 
Alaska.  Codes,  pt.  4,  c.  88,  sees.  887-917;  Arizona,  C.  C,  par.  1984;  Idaho, 
C,  C.  P.,  sec.  43.53;  Montana,  C.  C.  P.,  sec.  2970;  Nevada,  Comp.  Laws, 
sec.  572;  North  Dakota,  Probate  Code,  sees.  6537-6587;  Oregon,  Codes 
and  Statutes,  sees.  5267,  5270,  5271,  5272;  South  Dakota,  Probate  Code, 
Bee.  366;  Utah,  Bev.  Stats.,  sec.  4OO0;  Wyoming,  Rev.  Stats^  4879-4897. 


No.   1409. — Order  Appointing  Guardian  of  Incompetent  Per- 
son. 

[Title  of  Court  and  Estate.] 

It  is  hereby  ordered  that  A.  D.  be,  and  he  is  hereby,  appointed 
guardian  of  the  estate  of  C.  D.,  an  incompetent  person,  and  that 
letters  of  guardianship  issue  to  him  in  the  usual  form  upon  his 
fiHng  a  bond,  in  the  form  required  by  law,  in  the  sum  of  $10,000, 
to  be  approved  by  the  judge  of  this  court. 

NOTE. — California,  C.  C.  P.,  sec.  1765;  Alaska,  Codes,  pt.  4,  c.  88, 
sees.  817-887;  Arizona,  C.  C,  par.  1986;  Idaho,  C.  C.  P.,  sec.  4355;  Mon- 
tana, C.  C.  P.,  sec.  2972;  Nevada,  Comp.  Laws,  sec.  574;  North  Dakota, 
Probate  Code,  sees.  65.^7-6587;  Oregon.  Codes  and  Statutes,  sec.  5274; 
South  Dakota,  Probate  Code.  sees.  379-.382;  Washington,  Ballinger's 
Codes,  sees.   6427-6439;    Wyoming,   Eev.   Stats.,   sec.   4890. 


No.  1410 — Order  Granting  to  Nonresident  Guardian  Leave  to 
Remove  Wards'  Property  from  State. 

[Title  of  Court  and  Estate.] 

It  appearing  to  the  court  that  A.  S.,  E.  S.,  and  M.  S.  are  min- 
ors and  residents  of  the  town  of  Galway,  county  of  Saratoga,  in 
the  state  of  Nezv  York,  that  A.  B.  is  the  guardian  of  the  persons 
and  estate  of  said  minors  in  said  state  of  Neiv  York  and  is  a  resi- 
dent of  said  state,  and  that  he  has  filed  in  this  court  a  transcript 
of  the  record  of  his  appointment  as  said  guardian,  and  it  also 
appearing  that  he  has  entered  upon  the  discharge  of  his  duties  in 
said  state,  and  that  he  is  entitled  by  the  laws  of  the  state  of  Ne^^v 
York  to  the  possession  of  all  the  estate  of  his  said  wards,  where- 
ever  it  may  be ;  and  it  also  appearing  to  the  court  that  each  of 
said  minors  is  entitled  under  the  laws  of  the  state  of  California, 
to  one-twelfth  part  of  all  the  personal  property  remaining  in  the 
hands  of  the  executor  of  the  last  will  of  S.  D.,  deceased,  as  ap- 


8o8  New  Book  of  Forms. 

pea^s  by  the  final  account  of  the  executor  of  said  estate  on  file  in 
this  court,  case  No.  jojdj,  Department  No.  5,  and  also  by  the 
decree  of  distribution  in  said  estate. 

It  is  ordered  that  /.  C.  R.,  the  executor  of  the  last  will  of  S.  D., 
deceased,  deliver  to  said  A.  B.,  as  guardian  aforesaid,  all  the  fol- 
lowing described  property,  to  wit  [description],  and  the  said 
guardian  is  hereby  granted  leave  to  remove  said  property  from 
the  state  of  California. 

NOTE. — Under  the  facts  as  they  appear  in  the  above,  such  order  wilj 
be  made;  and  when  the  foreign  guardian's  receipt  is  filed  with  the  clerk 
of  the  California  court,  and  a  duplicate  forwarded  to  the  court  from 
which  the  nonresident  guardian  received  his  appointment,  the  Cali- 
fornia executor  is  discharged  from  further  liability:  Cal.  C.  C.  P.,  sees. 
1798,  1799;  Arizona,  C.  C,  par.  2022;  Idaho,  C.  C.  P.,  sees.  4386,  4387; 
Montana,  C.  C.  P.,  sees.  3034,  3035;  Nevada,  Comp.  Laws,  sec.  1904,  p. 
54;  North  Dakota,  Probate  Code,  sees.  6575-6580;  South  Dakota,  Probate 
Code.  sees.  412-418;  Utah,  Pt^v.  Stats.,  sees.  4023,  4024;  Washington, 
Ballinger's  Codes,  sec.  6419;  Wyoming,  Rev.  Stats.,  sees.  4927,  4928. 


No.  141 1. — Order — Habeas  Corpus — Granting. 

[Title  of  Court  and  Cause.] 

Upon  reading  and  filing  the  petition  of  P.  S.,  duly  signed  and 
verified  by  him,  whereby  it  appears  that  he  is  illegally  imprisoned 
and  restrained  of  his  liberty  by  /.  T.  R.,  sheriff  of  the  county  of 
San  Joaquin,  at  the  County  Jail  in  the  county  of  San  Joaquin, 
in  the  state  of  California,  and  stating  wherein  t^e  alleged  illegal- 
ity consists,  from  which  it  appears  to  me  that  a  writ  of  habeas 
corpus  ought  to  issue,  it  is  ordered  that  a  writ  of  habeas  corpus 
issue  out  of  and  under  the  seal  of  the  superior  court  of  the  state 
of  California,  county  of  San  Joaquin,  directed  to  the  said  /.  T.  R., 
sheriff  as  aforesaid,  commanding  him  to  have  the  body  of  the 
said  P.  S.  before  me,  in  the  courtroom  of  the  said  court,  at  the 
county  of  San  Joaquin,  on  the  twenty-first  day  of  January,  ipo6, 
at  two  o'clock  P.  M.  of  that  day,  to  do  and  receive  what  shall 
then  and  there  be  considered  concerning  the  said  petitioner,  P.  S., 
together  with  the  time  and  cause  of  his  detention,  and  that  you 
have  then  and  there  the  said  writ. 

NOTE.— California,  Pen.  C,  1476:  Alaska,  Codes,  pt.  4.  c.  57,  sees. 
566-608;  Arizona,  Pen.  C,  r.ar.  1221,  1222;  Idaho,  Pen.  C,  see.  5743; 
Montana,  Pen.  C,  sees.  2740-2750;  Nevada,  Comp.  Laws,  sees.  3446, 
3447;  New  Mpxico,  Comp.  Laws,  sees.  280.3,  2804;  North  Dakota,  C. 
C.  P.,  sec.  8652;  Orrrrnn,  Codes  and  Statutes,  sees.  621.  623,  659;  South 
Dakota,  Cr.  P.,  sec.  771;  Utah,  Eev.  Stats.,  sec.  1072;  Wnphington,  Bal- 
ling-er's  Codfs.  90(t.  5817;  Wyoming,  Eev.  Stats.,  sees.  5466,  5467;  Colo- 
rado, Mill's  Stats.,  see.  2106. 


Orders.  809 


No.    1412. — Order   Establishing   Service   of  Notice — Heirship 

Determined. 

[Title  of  Court  and  Cause.] 

The  fact  of  such  service  having  been  established  to  the  satis- 
faction of  the  court,  it  is  adjudc^cd  that  service  of  notice  and  order 
to  show  cause  issued  in  the  above-entitled  matter  for  the  ascer- 
tainment of  the  rig^hts  of  all  persons  interested  in  said  estate  as 
to  their  heirship  has  been  made  as  required  by  law. 

NOTE.— Onlifornia.  C.  C.  P.,  sees.  1664,  1705;  Montana,  C.  C.  P.,  sec. 
2840;  Utah,  Eev.  Stats.,  sec.  3980;  Wyoming,  Rev.  Stats.,  sec.  4835. 


No.    1413. — Order — Injunction. 

[Title  of  Court  and  Cause.] 

The  plaintiff  in  the  above-entitled  cause,  having  commenced  an 
action  in  the  superior  court  of  the  county  of  Plumas,  state  of 
California,  against  the  above-named  defendant,  and  having 
prayed  for  an  injunction  against  the  said  defendant,  requiring 
him  to  refrain  from  certain  acts  in  said  complaint,  and  herein- 
after more  particularly  mentioned,  on  reading  the  said  complaint 
in  said  action,  dttly  verified  by  the  oath  of  said  plaintiff,  and  it 
satisfactorily  appearing  to  me  therefrom  that  it  is  a  proper  case 
for  an  injunction,  and  that  sufificient  grounds  exist  therefor,  and 
an  undertaking  having  been  given,  approved  and  as  required  by 
me,  in  the  sum  of  three  thousand  dollars,  it  is  therefore  ordered 
by  me,  the  judge  of  said  superior  court,  that  until  further  order 
in  the  promises,  you,  the  said  R.  R.,  and  all  your  serxunts,  coun- 
selors, attorneys,  solicitors  and  agents,  and  all  others  acting  in 
aid  or  assistance  of  you,  and  each  and  every  of  you,  do  absolutely 
desist  and  refrain  from  [state  the  thing  prohibited  thus:  "En- 
tering upon  the  land  and  premises,  or  any  part  thereof,  described 
in  the  said  complaint,  and  from  cutting  trees,  lopping  off 
branches,  or  otherivise  mutilating  said  premises,  and  from  using 
the  same  for  the  purposes  of  the  encampment  mentioned  in  the 
said  complaint,  and  from  digging  holes  in  the  ground  on  the 
said  premises,  and  from  committing  any  waste  or  nuisance  zvhat- 
ever  on  said  land  and  premises"].     To  R.  R.,  defendant  herein. 

NOTE.— California,  C.  C.  P.,  sees.  52.5,  526.  Injunction  orders  are  the 
same  in  substance  everywhere.  The  form  of  the  order  depends  alwavs 
opon  the  facts  alleged  in  the  bill  of  complaint  or  affidavits;  Alaska, 
Codes,  pt.  4,  c.  41,  sees.  .^R3-?.98;  Arizona,  C.  C,  par.  2742-2745;  Tdnho, 
C.  C.  P.,  sees.  32.S4,  32S5;  Montana,  C.  C.  P..  sees.  875-SSl;  Nevada, 
Comp.  Laws,  sees.  3206,  3207,  3211,  3212;  New  Mexico,  Comp.  Laws,  sees. 


8io  New  Book  of  Forms. 

873-875  (rale's);  North  Dakota,  C.  C.  P.,  sees.  5343-5346;  Oregon,  Codes 
and  Statutes,  sec.  418;  South  Dakota,  C.  C.  P.,  see.  196;  Utah,  Rev. 
Stats.,  sec.  .3058;  Wasliiiicrton.  Ballinger's  Codes,  sees.  5413-54.52:  Wyom- 
ing, Bev.  Stats.,  sec.  4044;  Colorado,  iliil's  Stats.,  sees.  375,  1057,  3159. 


No.  1414. — Order  for — Injunction  for,  to  Issue. 
[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California,  to  R.  R.,  Send  Greeting. 
The  above-named  plaintiff  having  filed  his  complaint  in  our 
superior  court  against  the  above-named  defendant,  praying  for 
an  injunction  against  said  defendant,  requiring  him  to  refrain 
from  certain  acts  in  said  complaint  and  hereinafter  more  partic- 
ularly mentioned;  on  reading  the  said  complaint  in  this  action. 
duly  verified  by  said  plaintiff,  and  it  satisfactorily  appearing  to 
the  judge  of  said  court  therefrom  that  it  is  a  proper  case  for  an 
injunction,  and  that  sufficient  grounds  exist  therefor,  and  the 
'necessary  and   proper  undertaking  having  been   given; 

We  therefore,  in  consideration  thereof,  and  of  the  particular 
matters  in  the  said  complaint  set  forth,  do  strictly  command  that 
you,  the  said  R.  R.,  each  and  every  of  you,  until  the  further  order 
of  said  court,  you  and  each  of  you,  your,  and  each  of  your  ser- 
vants, counselors,  attorneys,  solicitors,  and  agents,  and  all  others 
acting  in  aid  or  assistance  of  you,  or  either  of  you,  do  absolutely 
desist  and  refrain  from  [state  matter  as  in  order]. 


No.    141 5. — Order   for   Inspection. 
[Title  of  Court  and  Cause.] 

It  is  ordered  that  you,  A.  L.  [defendant  or  plaintiff]  forth- 
with [or  at  a  time  stated]  exhibit  the  original  account  set  up  in 
your  answer  to  the  plaintiff,  and  furnish  him  with  a  copy  of  the 
same. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec.  1000.  Inspection  of  judgment,  see 
docket.  Id.  673.  Execution-books,  Id.  683.  To  refresh  memory.  Id. 
2047.  All  public  records.  Id.  1892.  When  demanded.  Id.  1000.  Ad- 
verse party  may  inspect.  Id.  2054.  Of  written  instrument,  Id.  449. 
Penalty  for  not  permitting.  Id.  449;  Idaho,  C.  C.  P.,  sec.  3705;  Mon- 
tana C.  C.  P.,  see.  1810;  Nevada,  Comyj.  Laws,  sec.  3521;  North  Dakota, 
C  c'  P*  see  5644-  Oregon,  Codes  and  Statutes,  sec.  533;  South  Dakota, 
c'  C  P'  sees  476,  477;  Utah,  Rev.  Stats.,  sees.  3401,  3474,  3721,  3984, 
3985*  3988;  Washington,  Ballinger's  Codes,  sec.  6047;  Wyoming,  Rev. 
Btatl,  sec.  3730. 


Orders.  Sh 


No.    1416. — Order — Intervention   Allowed. 
[Title  of  Court  and  Cause.] 

The  complaint  of  P.  K.  N.  having  been  presented  to  me,  and 
leave  asked  to  file  the  same,  as  his  complaint  of  intervention 
herein,  and  it  appearinn:  that  good  cause  exists  therefor,  it  is  or- 
dered that  leave  be  granted  to  file  the  same,  and  that  said  P.  K. 
N.  be  permitted  to  intervene  in  said  action. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec.  387;  Alaska,  Codes,  pt.  4,  c.  3,  see. 
41;  Arizona,  C.  C,  pars.  1278,  1279;  Idaho.  C.  C.  P.,  sees.  3174,  3177. 
31/8;  Montana,  C.  C.  P.,  sec.  589;  Nevada,  Comp.  Laws.  sec.  .3694- 
North  Dakota,  C.  C.  P.,  sec.  .52.-59;  South  Dakota,  C.  C.  P.,  sec.  96-  Utal^ 
Eev.  Stats.,  sec.  2925;   Washington,  Ballinger's  Codes,   sees.   4846,  4847 


No.  14 1 7. — Order  to  Shov/  Cause  Why  Lease  of  Real  Estate 
Should  not  be  Made, 

[Title  of  Court  and  Estate.] 

Upon  reading  the  petition  of  E.  D.,  administratrix  of  the  es- 
tate of  C.  D.,  deceased,  for  an  order  to  lease  a  house  and  lot  be- 
longing to  said  estate,  it  is  ordered  notice  be  given  that  all  per- 
sons interested  in  said  estate  appear  before  this  court  on  Mon- 
day, June  J,  /pod,  at  ten  o'clock  A.  M.,  then  and  there  to  show 
cause  why  that  house  and  lot  No.  j/'/  Maple  street  in  said  city 
and  county  should  not  be  leased  for  the  period  of  five  vears,  at 
the  rental  of  $200  a  month,  payable  in  advance ;  said  notice  shall 
refer  to  said  petition  for  further  particulars ;  and  it  is  further 
ordered  that  said  notice  shall  be  published  for  two  successive 
weeks  in  a  newspaper  of  general  circulation. 

NOTE. — The  order  to  show  cause  may  be  personally  served  on  the 
persons  interested  in  the  estate  at  least  ten  days  prior  to  the  time  ap- 
pointed for  hearing  the  petition,  or  it  may  be  publish* d  for  two  sucoes- 
sive  weeks  in  a  newsjiaper  of  general  circulation  in  the  county:  C"al.  C. 
C.  P.,  see.  1579;  Arizona,  C.  C.,  par.  1824;  New  Mexico,  Comp.  Laws, 
sec.  2079. 


No.    1418. — Order — Life    Estate   Terminated. 
[Title  of  Court  and  Cause.] 

This  matter  coming  on  regularly  to  be  heard  by  the  court  this 
^d  day  of  June,  ipoj,  and  the  whole  matter  having  been  sub- 
mitted to  the  court  for  judgment,  the  court  finds  the  facts  to  be 


8i2  New  Book  of  Forms. 

as  follows:  The  said  A.  B.  died  on  the  loth  day  of  May,  igo6, 
and  that  her  life  estate,  right,  title  and  interest  in  the  land  here- 
inafter described,  has  by  reason  of  her  death,  absolutely  termin- 
ated, that  neither  the  heir  at  law  of  said  deceased,  namely,  A. 
B.  C,  nor  any  other  person  interested  in  the  estate  of  said  de- 
ceased received  or  became  vested  of,  by  descent,  succession  or 
otherwise,  from  said  deceased,  at  her  death,  any  right,  title,  in- 
terest or  estate  in  said  land,  and  it  is  decreed  that  the  same  is 
now  vested  in  fee  simple  in  C.  B.,  her  husband,  free  from  any 
and  all  right,  title  or  claim,  or  by  or  on  account  of  any  person 
claiming  under  said  deceased. 

The  said  land  is  situated  in  the  county  of  Napa,  state  of  Cali- 
fornia, and  is  described  as  follows,  to  wit:   [Description.] 

NOTE.— California,  C.  C.  P.,  sees.  1705-1723;  Idaho,  C.  C.  P.,  sec. 
42S1;  Montana,  C.  C.  P.,  sec.  2930;  Utah,  Eev.  Stats.,  sec  3527;  Wyom- 
ing, Kev.  Stats.,  sec.  4556, 


No.     1419. — Order — Mortgage — Application    by    Estate 
Cause  to  be  Shown. 

[Title  of  Court  and  Estate.] 

M.  D.,  as  the  administratrix  of  the  estate  of  C.  D.,  deceased, 
having  filed  herein  her  duly  verified  petition  praying  for  an  order 
of  this  court  authorizing  and  directing  her  to  borrow  the  sum 
of  .^10,000  of  such  lesser  sum  as  the  court  may  deem  necessary 
wherewith  to  pay  the  debts  of  said  estate,  and  for  the  purpose  of 
securing  the  payment  of  such  loan,  to  mortgage  to  the  lender  of 
such  money  that  certain  real  propery  of  said  estate  situate  in 
said  city  and  county  of  San  Francisco,  state  of  California.  [De- 
scription.] 

It  is  ordered  that  all  persons  interested  in  said  estate  appear 
before  this  court,  at  its  courtroom  [Department  No.  10],  in  said 
city  and  county,  on  the  Hfth  day  of  November,  igo6,  10  o'clock 
A.  M.,  and  then  and  there  show  cause  why  the  said  prayer  of 
said  petition  should  not  be  granted  and  the  real  property  above 
described  mortgaged  to  secure  a  loan  to  said  estate  of  ten  thou- 
sand dollars,  or  such  lesser  amount  as  the  court  may  deem  meet, 
wherewith  to  pay  the  debts  of  said  estate. 

For  all  further  particulars  of  said  petition  you  are  hereby  re- 
ferred to  the  petition  now  on  file  herein. 

NOTE. — In  California,  upon  filing  the  petition  [see  Petition  for  Or- 
der], an  order  shall  be  made  by  the  court  or  judge,  requiring  all  persons 
interested  in  the  estate  to  appear  before  the  court  or  judge,  at  a  time 
and  place  specifipd,  not  less  than  four  nor  more  than  ten  weeks  there- 
after, then  and  there  to  show  cause  why  the  realty   (briefly  indicating 


Orders.  ^^ 


it),  or  some  pnrt  thereof,  should  not  bo  mortf^ajfed  for  the  amount 
mentioned  in  the  petition,  stating  sueh  amount,  or  such  lesser  amount 
as  to  the  court  or  judfje  shall  seem  meet,  and  referring  to  the  petition 
on  file  for  further  particulars. 

The  order  to  show  cause  may  be  personally  served  on  the  persons  in- 
terested in  the  estate  at  least  ten  days  before  the  time  appointed  for 
hearing  the  petition,  or  it  may  be  published  for  four  successive  weeks 
in  a  newspaper  of  general  circulation  published  in  the  county:  Cal.  C.  C. 
P.,  part  of  sec.  1578;  Arizona,  C.  C,  pars.  1816-182.3;  Montana,  C.  C.  P., 
sec.  2641;  New  Mexico,  Comp.  Laws,  sees.  2076-2078;  North  Dakota.  Pro- 
bate Code,  sees.  64.54,  5455;  Oregon,  Codes  and  Statutes,  sec.  1195;  South 
Dakota,  Probate  Code,  sees.  240,  241;  Washington,  Ballinger's  Codes, 
Bee.  6265;  Utah,  Rev.  Stats.,  sees.  3908,  3909. 


No,    1420, — Order — Mortgage. 
[Title  of  Court  and  Estate.] 

M.  D.,  the  administratrix  of  the  estate  of  C.  D.,  deceased,  hav- 
ing petitioned  this  court  for  an  order  empowering  her  as  such 
administratrix  to  mortgage  the  land  and  improvements  described 
in  said  petition  for  the  benefit  of  said  estate,  and  said  matter 
coming  on  this  day  to  be  heard,  and  satisfactory  proof  having 
been  made  of  personal  service  of  the  order  to  show  cause  why 
this  order  should  not  be  made  on  all  persons  interested  in  said 
estate,  a.d  no  objections  having  been  made  to  the  making  of  this 
order ;  and  proof  having  been  made  to  the  court's  satisfaction 
that  it  is  for  the  best  interests  of  said  estate  to  make  this  order : 

It  is  therefore  ordered  that  the  said  administratrix  execute  in 
the  name  of  and  for  the  benefit  of  said  estate,  a  mortgage  of  all 
the  land  and  improvements  described  in  said  petition  to  any  per- 
son, firm,  or  corporation  who  will  lend  said  estate  $10,000  in 
gold  coin  of  the  United  States,  payable  two  years  after  the  date 
of  this  order  with  interest  at  the  rate  of  not  exceeding  seven  per 
cent  per  annum  payable  semi-annually. 

The  land  and  improvements  ordered  mortgaged  are  situated 
in  the  city  and  county  of  San  Francisco  and  bounded  and  de- 
scribed as  follows,  to  wit:   [Description.] 


No.  142 1. — Order — Mortgage,  Clause  "A." 

It  is  therefore  ordered  [as  in  No.  1420  down  to  the  words 
"United  States"]  payable  two  years  from  the  Urst  day  of  May, 
igo6,  or  at  any  time  one  year  after  the  date  of  said  mortgage, 
with  interest  at  the  rate  of  net  over  seven  per  cent  per  annunv 
payable  on  the  first  day  of  each  month,  [not  in  advance]  com- 
mencing June  I,  1006.  It  is  also  ordered  that  the  whole  of  said 
principal  [or  a  part,  as  the  case  may  be]  and  all  the  interest  be 


8x4  New  Book  of  Forms. 

paid  from  time  to  time  out  of  any  money  belonging  to  said 
estate  in  the  possession  of  said  administratrix  no  matter  from 
what  source  derived.      [Conclude  as  before.] 


No.  1422. — Order — Mortgage,  Clause  "B." 

It  is  therefore  ordered  [as  in  No.  1420.]  That  any  buildings 
on  the  premises  hereinafter  described  [or  in  said  petition  de- 
scribed, or  in  this  order  described]  be,  by  said  administratrix 
insured  at  the  prevailing  rates  of  good  insurance  for  the  sum  of 
$3,000  payable  to  said  estate,  for  the  further  security  of  the 
lender  of  said  $10,000,  and  the  premium  on  said  insurance  paid 
by  said  administratrix  from  the  income  of  said  estate.  [Con- 
clude as  before.] 

NOTE. — In  California,  at  the  time  and  at  the  place  appointed  in  the 
order  to  show  cause,  or  at  such  other  time  and  place  to  which  the  hear- 
ing may  be  postponed  (the  power  to  make  all  needful  postponements 
being  hereby  vested  in  the  court  or  juds^e),  hav-ing  first  received  satis- 
factory proof  of  personal  service,  or  publication  of  the  order  to  show 
cause,  the  court  or  judge  must  proceed  to  hear  the  petition,  and  any 
objections  that  may  be  filed  or  presented  thereto.  Upon  such  hearing 
witnesses  may  be  compelled  to  attend  and  testify  in  the  same  manner 
and  with  like  effect  as  in  other  eases;  and  if,  after  a  full  hearing,  the 
court  or  judge  is  satisfied  that  it  will  be  for  the  advantage  of  the 
estate  to  mortgage  the  whole  or  any  portion  of  the  real  estate,  an 
order  must  be  made  authorizing,  empowering,  and  directing  the  executor 
or  administrator,  or  the  guardian  of  such  minor,  or  incompetent  person, 
to  make  such  mortgage.  The  order  may  direct  that  a  lesser  amount 
than  that  named  in  the  petition  be  borrowed,  and  may  prescribe  the 
maximum  rate  of  interest  and  period  of  the  loan,  and  require  that  the 
interest,  and  the  whole  or  any  part  of  the  principal,  be  paid,  from 
time  to  time,  out  of  the  whole  estate,  or  any  part  thereof,  and  that  any 
buildings  on  the  premises  to  be  mortgaged  sh?ll  be  insured  for  further 
security  of  the  lender,  and  thp  premiums  paid  from  such  income:  Cal. 
C.  C.  P.,  part  of  sec.  1578.     [See  Petition.] 


No.    1423. — Order — Commissioner    Appointed — Partition. 
[Title  of  Court  and  Estate.] 

This  matter  coming  on  to  be  heard  in  open  court  this  jrf  day 
of  June,  IQ05,  and  all  persons  interested  being  present  by  con- 
sel  or  in  person,  and  it  appearing  that  notice  of  said  hearing  has 
been  given  as  directed  by  law,  and  final  distribution  of  said  es- 
tate has  been  made,  and  no  person  objecting,  it  is  ordered  that 
A.  B.  and  C.  D.  be  appointed  commissioners  herein,  and  that  as 
such  commissioners  they  proceed,  after  giving  notice  as  required 
by  law,  to  make  partition  and  division  of  the  property  hereinafter 
described,  and  segregate  and  set  off  the  same  in  severalty  as  fol- 


Orde;rs.  815 

lows,  to  wit:  To  E.  F.  the  equivalent  of  an  undivided  one-half 
part  thereof,  to  G.  H.  the  equivalent  of  an  undivided  one-half 
part  thereof,  and  that  the  part  allotted  to  each  be  ascertained, 
marked  and  described  so  that  the  same  can  be  easily  distin- 
guished, and  that  the  partition  so  made  be  forthwith  reported 
to  this  court 

The  property  to  be  so  partitioned  is  described  as  follows,  to 
wit:  [Description.] 

NOTE.— California,  C.  C,  P.,  sec.  1676;  Alaska,  Codes,  pt.  4,  c.  43, 
Bees.  397-443;  Arizona,  C.  C,  par.  1901;  Idaho,  C.  C.  P.,  sec.  4282;  Mon- 
tana, C.  C.  P.,  see.  2860;  Nevada,  Comp.  Laws,  sees.  3004-3007;  New- 
Mexico,  Comp.  Laws,  sees.  3179-3186;  North  Dakota,  Probate  Code, 
Bees.  G517-65:i3;  South  Dakota,  Probate  Code,  sees.  312-323;  Utah,  Rev. 
Stats.,  see.  3958;  Washington,  Balliuger's  Codes,  sec.  6358;  Wyoming, 
Eev.  Stata,  sec.  4841. 

No.   1424- — Order — Notice  of  Application  for  Partition  to  be 

Given. 

[Title  of  Court  and  Estate.] 

It  is  ordered  that  notice  of  the  time  and  place  of  hearing  said 
petition  be  given  by  the  clerk  of  this  court  by  posting  in  three  of 
the  most  public  places  in  said  county  for  at  least  ten  days  in 
succession  prior  to  the  day  set  for  said  hearing. 

NOTE. — California,  C.  C.  P.,  sec.  1676;  Alaska,  Codes,  pt.  4,  c.  43, 
sees.  397-443;  Arizona,  C.  C,  par.  1902;  Idaho,  C.  C.  P.,  sec.  4283;  Mon- 
tana, C.  C.  P.,  sec.  2861;  Nevada,  Comp.  Laws,  sees.  3005-3006;  New 
Mexico,  Comp.  Laws,  sees.  3179-3186;  North  Dakota,  Probate  Code, 
Bccs.  6517-6523;  South  Dakota,  Probate  Code,  sees.  312-323;  Utah  Rev. 
Stats.,  sec.  3957;  Washington,  Baliinger's  Codes,  sec.  6360;  Wyoming, 
Rev.  Stats.,  sec.  4842. 

No.    1425. — Order   Accepting   Resignation    of    Testamentary 

Trustee. 

[Title  of  Court  and  Estate.] 

It  appearing  to  the  court  that  A.  B.,  appointed  trustee  by  the 
will  of  said  C.  D.,  deceased,  has  filed  his  written  resignation  of 
said  trust,  and  this  day  having  been  fixed  for  the  hearing  of  said 
resignation,  and  said  matter  having  been  heard  by  this  court  upon 
the  day  set  for  hearing,  and  it  having  been  heard  and  deter- 
mined, it  is  ordered  that  said  resignation  be,  and  it  is  hereby 
accepted. 

NOTE.— California,  C.  C.  P.,  sees.  1702,  1705. 

No.    1426. — Order — Sale — Personal    Property. 

[Title  of  Court  and  Estate.] 

The  application  of  M.  J.,  administratrix  of  the  estate  of  T.  J., 
deceased,  for  an  order  to  sell  certain  personal  property,  described 
in  her  petition  filed  herein  on  the  sixth  day  of  August,  igo6,  and 


8i6  NiiW  Book  of  Forms. 

hereinafter  particularly  described,  coming  on  regularly  to  be 
heard,  this  thirteenth  day  of  August,  ipo6,  it  is  hereby  ordered, 
adjudged  and  decreed  that  the  said  administratrix  sell  the  follow- 
ing personal  property,  to  wit:  i  gold  xvatch  and  chain,  25  shares 
of  the  Z.  G.  and  S.  M.  Company,  100  shares  of  the  C.  C.  M. 
Company,  §0  shares  of  the  N.  and  J.  M.  Cmnpany,  and  5  shares 
of  the  S.  V.  M.  Company,  at  public  auction  and  after  public  no- 
tice given  for  at  least  ten  days  by  publication  in  the  D.  C,  a 
nezvspaper  published  in  said  city  and  county  [or  by  notices  posted 
in  three  public  places  in  said  city  and  county],  in  which  notice 
shall  be  specified  the  time  and  place  of  sale. 

[And  it  is  further  ordered,  that  the  sale  of  said  property  be 
made  in  front  of  the  old  City  Hall  in  said  city  and  county,  or 
at  the  late  residence  of  deceased,  or  at  some  other  public  place 
to  be  named  in  said  notice.']  And  it  is  further  ordered  that  the 
following  described   articles  be   sold  first    [enumerating   them]. 

NOTE. — In  California,  if  a  sale  is  necessary  to  pay  debts,  or  the  fam- 
ily allowance,  or  for  the  best  interest  of  the  estate  and  the  persons  in- 
tersted  in  the  property  to  be  sold,  the  court  orders  it  sold.  [In  making 
such  orders,  articles  not  necessary  for  the  support  of  the  family,  or 
not  specially  bequeathed,  must  be  f.rst  sold,  and  the  court  or  judge 
must  so  direct.]  Cal.  C.  C.  P.,  sec.  1525;  Alaska,  C!odes,  pt.  4,  c.  85, 
sees.  830-858;  Arizona,  C.  C,  par.  1770;  Idaho  C.  C.  P.  sec.  4164;  Mon- 
tana, C.  C.  P.,  sec.  2653;  Nevada,  Comp.  Laws,  sec.  2911;  North  Dakota, 
Probate  Code,  sees.  6431-6434;  South  Dakota,  Probate  Code,  sees.  196, 
200;  Washington,  Ballinger's  Codes,  sec.  6254. 

No.  1427. — Order — Perishable  Personal  Property  to  Sell 

[Title  of  Court  and  Estate.] 

The  application  of  /.  C.  R.,  executor  of  the  estate  of  S.  D.,  de- 
ceased, for  an  order  to  sell  certain  personal  property,  coming  on 
regularly  to  be  heard  this  20th  day  of  May,  IQ06,  it  is  hereby 
ordered  that  the  said  executor  sell  at  private  sale  713  sacks  of 
zvheat,  described  in  his  petition  this  day  filed,  without  giving  no- 
tice of  sale. 

NOTE. — California,  C.  C.  P.,  sec.  1522;  Arizona,  C.  C,  par.  1767; 
Idaho,  C.  C.  P.,  sec.  4161;  Montana,  C.  C.  P.,  sec.  2650;  Nevada,  Comp. 
Laws,  see.  2911;  North  Dakota,  Probate  Code,  sec.  6430;  South  Dakota, 
Probate  Code,  sees.  196-200;  Utah,  Rev.  Stats.,  sec.  3885;  Washington, 
Ballinger's  Codes,  sec.  6252;  Wyoming,  Bev.  Stats.,  see.  4722. 

No.  1428. — Order  of  Sale  of  Personal  Property  Upon  Petition 

for  Sale  of  Realty. 

[Title  of  Court  and  Estate.] 

The  application  of  the  administrator  of  the  above-entitled  es- 
tate for  an  order  to  sell  the  real  estate  described  in  said  applica- 
tion coming  on  this  day  to  be  heard,  it  is  ordered  that  said  appli- 


Orders.  817 

cation  to  sell  said  real  estate  be,  and  it  is,  suspended  iinthout 
prejudice  to  further  proceedings  under  it;  and  it  appearinj^  to 
the  court  that  there  is  in  the  possession  of  said  administrator 
certain  personal  property  belonging  to  said  estate,  it  is  ordered 
that  he  proceed  to  sell  at  private  sale  the  personal  property 
described  as  follows:  [Description.]  And  return  an  account  of 
said  sale,  zmtfwut  delay,  to  this  court.  Said  sale  may  he  made 
without  notice,  hut  delivery  is  not  to  be  made  until  the  further 
order  of  this  court. 

NOTE.— California,  C.  C.  P.,  sec.  1639;  Arizona,  C.  C,  par.  1873; 
Idaho,  C.  C.  P.,  sec.  4157;  Montana,  C.  C.  P.,  sec.  2797;  North  Dakota, 
Probate  Code,  sees.  6428-6442;  South  Dakota,  Probate  Code,  sees.  196- 
239;  Utah,  Eev.  Stats.,  sec.  3887;  Wyoming,  Eev.  Stats.,  see.  4823. 


No.  1429. — Order  of  Sale  of  All  Property  Belonging  to  Estate 

— One  Sale.  , 

[Title  of  Court  and  Estate.] 

[The  same  as  in  order  of  sale  where  part  of  the  property  is 
ordered  sold;  then  continue:]  It  is  ordered  that  all  the  real  es- 
tate and  all  the  personal  property  belonging  to  said  estate,  be 
sold  at  public  auction  to  the  highest  bidder  upon  the  following 
terms,  to  wit,  for  cash,  in  gold  coin  of  the  United  States,  and 
that  but  one  sale  be  had  of  all  said  real  estate  and  personal  prop- 
erty, but  all  perishable  property  must  be  sold  as  is  provided  by 
section  1522  of  the  Code  of  Civil  Procedure. 

The  following  is  a  description  of  the  real  estate  to  be  sold: 
[Description.] 

The  personal  property  is  described  as  follows:   [Description.] 

The  perishable  property  is  described  as  follows:  [Description.] 

NOTE.— California,  C.  C.  P.,  sec.  1519;  Alaska,  Codes,  pt.  4,  c.  85, 
sees.  830-858;  Arizona,  C.  C,  par.  1766;  Idaho,  C.  C.  P.,  sec.  4160;  Mon- 
tana, C.  C.  P.,  see.  2644;  North  Dakota,  Probate  Code,  sees.  2428.'  6442; 
Oregon,  Codes  and  Statutes,  sec.  1177;  South  Dakota,  Probate  Code' 
sees.  201-209;  Utah,  Eev.  Stats.,  sec.  3S79;  Wyoming,  Eev.  Stats,  see! 
4771.  ' 


No.  1430. — Order — Sale  of  Personal  Property — Time  of. 

[Title  of  Court  and  Estate.] 

On  reading  and  filing  the  petition  of  M.  J.,  the  administratrix 
of  the  estate  of  T.  J.,  deceased,  praying  for  an  order  to  sell  tJie 
whole,  or  so  much  of  the  personal  property  belonging  to  said  es- 
tate as  shall  be    necessary  for  the   payment  of  certcun  claims  al- 
New  Forms — 52 


8i8  New  Book  of  Forms. 

lotved  against  said  estate,  the  expenses  of  the  administration,  and 
the  alJozvance  to  the  family  of  said  deceased,  it  is  ordered  that 
all  persons  interested  in  said  estate  appear  before  the  under- 
signed, the  judge  of  the  superior  court  of  the  city  and  county  of 
San  Francisco,  state  of  California,  at  the  courtroom  of  said  court, 
at  the  Old  City  Hall  in  said  city  and  county,  on  the  thirteenth 
dav  of  August,  IQ06.  at  eleven  o'clock  A.  M.,  then  and  there  to 
show  cause  why  such  order  should  not  be  made. 

And  it  is  further  ordered  that  a  copy  of  this  order  be  pub- 
lished in  the  D.  E.  B.,  a  newspaper  published  [or  be  posted  in 
three  public  places]  in  said  city  and  county,  at  least  five  days 
previous  to  said  third  day  of  August,  ipo6. 

NOTE. — In  California,  if  claims  against  the  estate  have  been  al- 
lowed, and  the  sale  of  property  is  necessary  for  their  payment,  or  for 
the  expenses  of  administration  [or  for  the  payment  of  legacies],  the 
executor  or  administrator  may  apply  for  an  order  to  sell  so  much  of  the 
personal  property  as  may  be  necessary  therefor.  Upon  filing  his  peti- 
tion, notice  of  at  least  five  days  must  be  given  of  the  hearing  of  the 
application,  either  by  posting  notices  or  by  advertising.  He  may  also 
make  a  similar  application,  from  time  to  time,  so  long  as  any  personal 
property  remains  in  his  hands,  and  sale  thereof  is  necessary.  If  it  ap- 
pear for  the  best  interests  of  the  estate,  he  may,  at  any  time  after 
filing  the  inventory  in  like  manner,  and  after  giving  like  notice,  apply 
for  and  obtain  an  order  to  sell  the  whole  of  the  personal  property  be- 
longing to  the  estate,  whether  necessary  to  pay  debts  or  not:  Cal.  C.  C. 
P.,  sec.  1523;  Alaska,  Codes,  pt.  4,  c.  85,  sees.  830-858;  Arizona,  C.  C, 
par.  1768;  Idaho,  C.  C.  P.,  spc.  4161;  Montana,  C.  C.  P.,  sec.  2651; 
Nevada.  Comn.  Laws,  sec.  2911;  North  Dakota,  Probate  Code,  sees. 
6431-6434;  Oregon,  Codes  and  Statutes,  sec.  1169;  South  Dakota,  Pro- 
bate Code,  sees.  196-200;  Washington,  Ballinger's  Codes,  sec.  6253. 


No.   1431. — Order — Sale — Personal  Property — Approving. 
[Title  of  Court  and  Estate.] 

M.  J.,  the  administratrix  of  the  estate  of  T.  J.,  deceased,  hav- 
ing? duly  returned  to  this  court,  and  filed  herein  an  account 
and  report,  verified  by  her  affidavit,  of  sales  made  by  her  under 
the  order  of  the  judge  of  this  court,  dated  on  the  thirteenth  day 
of  August,  1906,  and  having  also  filed  a  petition  praying  that 
said  sales  be  confirmed  and  approved ;  and  the  matter  coming  on 
regularly  to  be  heard  this  seventh  day  of  September,  ipo6,  and  it 
duly  appearing  to  the  satisfaction  of  the  judge  of  said  court  that 
said  sale  was  properly  conducted  and  legally  made,  and  that  due 
notice  of  the  time  and  place  was  given,  as  required  by  law  and 
the  order  of  the  judge  of  this  court,  it  is  ordered  and  decreed 
that  the  said  sale  be,  and  the  same  is  hereby,  confirmed  and 
approved,  and  declared  valid. 

NOTE. — California,  C.  C.  P.,  sec.  1517;  Alaska.  Codes,  pt.  4,  c.  85, 
sees.  830-858;  Arizona,  C.  C,  par.  1764;  Idaho,  C.  C.  P.,  sec.  4158;  Mon- 


Orders.  819 

tana,  C.  C.  P.,  sec.  2624;  Nevada,  Comp.  Laws,  sec.  2909;  North  Dakota, 
Probate  Code,  sees.  64.?1-G134;  Oregon,  Codes  and  Statutes,  sec.  11.^6; 
South  Dakota,  I'robate  Code,  sees.  196-200;  Utah,  Rev.  Stats.,  sec.  3878; 
\\iishington,  JiaUiiiger's  Codes,  sec.  6250;  Wyoming,  liev.  SUts.,  sec. 
4709. 


No.  1432. — Order — Sale  of  Real  Estate — Cause  to  Show. 
[Title  of  Court  and  Estate.] 

Af.  /.,  the  administratrix  of  the  estate  of  T.  J.,  deceased,  bav- 
ins^ filed  her  petition  herein  praying  for  an  order  of  sale  of  cer- 
tain part  of  the  real  estate  of  said  decedent,  for  the  purposes 
therein  set  forth,  it  is  therefore  ordered  by  the  judge  of  [or  by 
the]  said  court,  that  all  persons  interested  in  the  estate  of  said 
deceased  appear  before  the  said  superior  court  on  Monday,  the 
seventh  day  of  December,  igo6,  at  eleven  o'clock  in  the  forenoon 
of  said  day,  at  the  courtroom  of  said  superior  court,  at  the  City 
Hall,  in  said  city  and  county  of  San  Francisco,  to  show  cause  why 
an  order  should  not  be  granted  to  the  said  administratrix  to  sell 
so  much  of  the  real  estate  of  the  said  deceased,  at  private  sale, 
as  shall  be  necessary ;  and  that  a  copy  of  this  order  be  published 
at  least  four  successive  weeks  in  the  D.  M.  C,  a  newspaper 
printed  and  published  in  said  city  and  county. 

NOTE. — In  California  if  it  appears  to  the  court  that  it  is  necessary 
to  sell  the  whole  or  some  portion  of  the  real  estate,  an  order  must  be 
made  directing  all  persons  interested  in  the  estate  to  appear  before  the 
court,  at  a  time  and  place  specified,  not  less  than  four  nor  more  than 
ten  weeks  from  the  time  of  making  of  such  order,  to  show  cause  why 
an  order  should  not  be  granted  to  the  executor  or  administratoi  to  sell 
so  much  of  the  real  estate  of  the  decedent  as  is  necessary:  Cal.  C.  C.  P., 
see.  153S;  Alaska,  Codes,  pt.  4,  e.  85,  sees.  830-858;  Arizona,  C.  C,  par. 
1779;  Idaho,  C.  C.  P.,  sec.  4173;  Montana,  C.  C.  P.,  sec.  2672;  Nevada, 
Comp.  Laws,  sec.  2916;  North  Dakota,  Probate  Code,  sees.  6428-6459; 
Oregon,  Codes  and  Statutes,  sec.  1174;  South  Dakota,  Probate  Code, 
sees.  203,  204;  Utah,  Rev.  Stats.,  see.  1899;  Washington,  Ballinger's 
Codes,  sec.  6258. 


No.    1433. — Order  to   Show   Cause  on   Sale   of  Real  Estate, 

Service  of. 

[Title  of  Court  and  Estate.] 

We,  the  undersigned,  interested  in  the  estate  of  the  said  A.  B., 
deceased,  each  admit  service  in  the  county  of  Alameda,  Califor- 
nia, on  May  20,  1906,  of  the  order  to  show  cause  before  said 
court,  on  June  10,  igo6,  why  the  real  estate  referred  to  in  said 
order  should  not  be  sold. 

NOTE. — Such  service,  at  least  ten  days  prior  to  the  time  appointed 
lor  the  hearing,  upon  all   persons  interested   in   the   estate,  residents   of 


820  New  Book  of  Forms. 

the  connty,  the  general  guardian  of  a  minor  so  interested,  rnd  any 
legatee,  or  devisee  or  heir  of  the  decedent,  provided  they  are  residents 
of   the  county,  is  equivalent   to   publication:    Cal.    C.   C.   P.,   see.    1539. 

Such  service  saves  the  cost  of  publications  and  in  many  instances 
is  entirely  practicable,  especially  where  there  are  few  cred'tors:  Alaska, 
Codes,  pt.  4,  c.  85,  sees.  830-858; 'Arizona,  C.  C,  par.  1780;  Idaho,  C.  C.  P., 
sec.  4174;  Montana,  C.  C.  P.,  sec.  2673;  Nevada,  Comp.  Laws,  sec.  2917; 
North  Dakota,  Probate  Code,  sees.  2*28,  6442;  Oregon,  Codes  and  Stat- 
utes, sec.  1175;  South  Dakota,  Probate  Code,  sec.  204;  Washington,  Bal- 
linger's  Codes,  see.  6259;  Wyoming,  Eev.  Stats.,  sec.  4784. 


No.  1434. — Order — Sale  of  Real  Estate — Guardian's  Applica- 
tion— Cause  to  Show — Guardian  for  Order  of  Sale  of 
Real  Estate. 

[Title  of  Court  and  Estate.] 

It  appearing  to  this  court  from  the  petition  this  day  presented 
and  filed  by  M.  /.,  the  guardian  of  the  persons  and  estate  of  W. 
J.,  C.  J.,  and  E.  J.,  minors,  praying  for  an  order  of  sale  of  cer- 
tain real  estate  belonging  to  said  wards,  and  that  it  is  for  the 
best  interests  of  said  zvards,  and  necessary  that  such  real  estate 
should  be  sold ;  it  is  hereby  ordered  that  the  next  of  kin  of  the 
said  wards,  and  all  persons  interested  in  the  said  estate,  appear 
before  this  court  on  Tuesday,  the  fourteenth  day  of  February, 
1906,  at  10  o'clock  A.  M.,  at  the  courtroom  of  this  court,  at  the 
New  City  Hall,  in  the  city  and  county  of  San  Francisco,  then 
and  there  to  show  cause  why  an  order  should  not  be  granted  for 
the  sale  of  such  estate. 

And  it  is  further  ordered  that  a  copy  of  this  order  be  pub- 
lished at  least  once  a  week  for  three  successive  weeks  before  the 
said  day  of  hearing,  in  the  D.  B.  B.,  a  newspaper  printed  and 
published  in  said  city  and  county  of  San  Francisco. 

NOTE. — In  California,  if  it  appear  from  the  petition,  that  it  is  neces- 
sary or  would  be  beneficial  to  the  ward  that  the  real  estate,  or  some 
part  of  it,  should  be  sold,  or  that  the  real  and  personal  estate  should 
be  sold,  the  court  must  thereupon  make  an  order  directing  the  next  of 
kin  of  the  ward,  and  all  persons  inteiested  in  the  estate,  to  appear 
before  the  court,  at  a  time  and  place  therein  specified,  not  less  than 
four  nor  more  than  eight  weeks  from  the  time  of  making  such  order, 
to  show  cause  why  an  order  should  not  be  granted  for  the  sale  of  such 
estate.  [If  it  appear  that  it  is  necessary  or  would  be  beneficial  to  the 
ward,  to  sell  the  personal  estate  or  some  part  of  it,  the  court  must  order 
the  sale  to  be  made.]  Cal.  C.  C.  P.,  sec.  1782;  Alaska,  Codes,  pt.  4,  c. 
89,  sees.  918-939;  Arizona,  C.  C,  par.  2002;  Idaho,  C.  C.  P.,  sec.  4371; 
Montana,  C.  C.  P.,  sec.  3005;  New  Mexico,  Comp.  Laws,  sees.  1434-1477; 
North  Dakota,  Probate  Code,  sees.  6561-6574;  Oregon,  Codes  and  Stat- 
utes, see.  5598;  South  Dakota,  Probate  Code,  sees.  392-407;  Washington, 
BaUinger's  Codes,  sec.   6413;   Wyoming,  Eev.   Stats.,  sec.  4912. 


Ordbrs.  821 


No.   1435. — Order — Cause,  to   Show — Sale  of  Mines. 
[Title  of  Court  and  Estate.] 

It  is  ordered  that  all  persons  interested  appear  before  the  su- 
perior court  of  the  county  of  Napa,  state  of  California,  on  the 
jrf  day  of  June,  1906,  at  10  o'clock  A.  M.,  and  there  show  cause, 
if  any  they  have,  why  an  order  should  not  be  made  authorizing 
A.  B.,  as  administrator  of  the  estate  of  A.  B.,  deceased,  to  sell 
the  mine,  mining  interests,  shares  and  stocks  belonging  to  said 
estate  as  described  in  the  petition  of  said  administrator  filed 
herein. 

NOTE.— Cah'fomia,  C.  C.  P.,  sees.  1531,  1704;  Alaska,  Codes,  pt.  4,  e. 
85,  sees.  830-858;  Arizona,  C.  C,  p.ir.  1774;  Idaho,  C.  C.  P.,  sec.  4168; 
Montana,  a  a  P.,  see.  2662;  Wyoming,  Rev.  Stats.,  sec.  4778. 


No.    1436. — Order  of  Sale  of  Real  Estate — Without  Notice, 

[Title  of  Court  and  Estate.] 

It  is  ordered  that  the  petition  of  the  administrator  of  this  es- 
tate filed  on  June  jd,  ipo6,  praying  for  an  order  of  sale  of  the 
real  estate  described  in  said  petition,  be,  and  the  same  is  hereby, 
granted,  and  it  is  ordered  that  said  property  be  sold  on  the  loth 
day  of  June,  igo6,  at  private  sale  without  publication  of  notice 
thereof.      [Conclude  as  in  usual  orders  of  sale  of  real  estate.] 

NOTE.— California.  C.  C.  P.,  sees.  1538-1544;  Alaska,  Codes,  pt.  4,  c 
85,  sees.  830-858;  Arizona,  C.  C,  par.  1799;  Idaho,  C.  C.  P.,  sec.  4173; 
Montana,  C.  C.  P.,  sec.  2672;  Nevada,  Comp.  Laws,  sec.  2916;  North 
Dakota,  Probate  Code,  sees.  2428,  6442;  Oroiron,  Codes  and  Statutes,  sec. 
1174;  South  Dakota,  Probate  Code,  see.  208;  Utah,  Rev.  Stats.,  Laws 
1899,  p.  2?<\  Washington,  Ballinger's  Codes,  sec.  6258;  Wyoming,  Rev. 
Stats.,  4783. 


No.  1437. — Order — Sale — Real  Estate. 
[Title  of  Court  and  Estate.] 

M.  J.,  the  administratrix  of  the  estate  of  T.  J.,  deceased,  hav- 
ing, on  the  Hfth  day  of  November,  igoS,  presented  to  [or  the 
jud^e  of]  the  superior  court,  and  filed  herein  Iwr  petition  in  due 
form,  verified  by  her  oath,  praying  for  an  order  authorizing  her 
to  sell  so  much  and  such  parts  of  the  real  estate  belonging  to  the 
estate  of  said  deceased,  for  purposes  therein  stated  ;  said  matter 
coming  on  regularly  to  be  heard  the  seventh  day  of  December, 
ipo6.  and,  upon  due  proof  to  the  satisfaction  of  the  court,  of  the 
due  publication  of  a  copy  of  the  said  order  to  show  cause,  as  re- 


822  New  Book  of  Forms. 

quired  by  law  and  the  order  of  this  court;  and  all  and  singular 
the  law  and  the  evidence  being  by  the  court  understood  and  duly 
considered : 

Whereupon  it  is  ordered,  adjudged  and  decreed  that  said  M.  J., 
administratrix  of  the  estate  of  T.  }.,  deceased,  be  and  she  is  here- 
by authorized  to  sell,  either  in  one  parcel  or  in  subdivisions,  as 
the  said  administratrix  shall  judge  most  beneficial  to  said  estate, 
the  real  estate  belonging  to  said  estate  hereinafter  described,  at 
f-v.hlic  auction  [at  private  sale],  to  the  highest  bidder,  upon  the 
following  terms,  to  wit,  for  cash,  gold  coin  of  the  United  States 
[or  on  credit  not  exceeding  one  year,  or  on  credit  to  be  paid  in 
installments] . 

And  it  is  further  ordered  that,  before  making  such  sale,  the 
said  administratrix  execute  an  additional  bond  to  the  state  of 
California,  with  two  or  more  sufficient  sureties,  in  the  penal  sum 
of  nve  thousand  dollars,  conditioned  that  the  said  administratrix 
shall  faithfully  execute  the  duties  of  the  trust  according  to  law. 

The  following  is  the  real  estate  hereby  authorized  to  be  sold, 
being  situate  in  the  said  city  and  county  of  San  Francisco,  state 
of  California,  and  bounded  and  described  as  follows,  to  wit :  [De- 
scription.] 

NOTE. — In  California,  the  order  describes  the  lands  and  the  temis, 
for  cash  or  on  credit,  not  exceeding  one  year,  payable  in  gross  or  in 
installments,  and  in  such  kind  of  money,  with  interest,  as  the  court 
may  direct.  It  may  be  sold  in  one  parcel,  or  in  subdivisions,  as  the 
executor  or  administrator  shall  judge  most  beneficial  to  the  estate,  un- 
less the  court  otherwise  specially  directs.  If  any  part  of  such  real  es- 
tate hus  been  devised,  and  not  charged  in  such  devise  with  the  payment 
of  debts  or  legacies,  the  court  must  order  the  remainder  to  be  sold 
before  that  so  devised.  Every  such  sale  must  be  ordered  to  be  made 
at  public  auction,  unless,  in  the  opinion  of  the  court,  it  would  benefit 
the  estate  to  sell  the  whole  or  some  part  of  it  at  private  sale;  the  court 
mav,  if  the  same  is  asked  for  in  the  petition,  order  or  direct  such  real 
estJite,  or  any  part,  to  be  sold  at  either  public  or  private  sale,  as  the 
executor  or  administrator  shall  judge  to  be  most  beneficial  for  the  estate. 
[If  the  executor  or  administrator  neglects  or  refuses  to  make  a  sale  under 
the  order,  and  as  directed  therein,  he  may  be  compelled  to  sell  by  order 
of  the  court  made  on  motion  after  due  notice  by  any  party  interested.] 
Cal  C  C  P  Fee.  1-544;  Alaska,  Codes,  pt.  4,  c.  85,  sees.  830-858; 
Ari?;ona,  C.  C.,  par.  1785;  Idaho,  C.  C.  P.,  sec.  4179;  Montana,  C.  C.  P., 
sec.  2678;  Nevada.  Comp.  Laws,  see.  2922;  New  Mexico,  Comp.  Laws, 
sees.  2055,  2058,  2065-2086;  North  Dakota,  Probate  Code,  sees.  6428-64.59; 
Oregon,  Codes  and  Statutes,  sec.  1177;  South  Dakota,  Probate  Code, 
sec.  209;  Utah,  Rrv.  Stats.,  sec.  ?<m^  :  Washington,  Ballinger's  Codes, 
«ec.  6462;  Wyoming,  Eev.  Stats.,  see.  4789. 


Orders.  823 


No.   1438. — Order  of  Sale  of    Real  Estate    by  Administrator 
upon   Petition   of   Person   Interested. 

[Title  of  Court  and  Estate.] 

The  petition  of  A.  B.,  a  creditor  of  and  interested  in  this  es- 
tate, having  petitioned  for  an  order  directing  C.  D.,  the  ad:nin- 
istrator  thereof,  to  proceed  and  sell  all  the  real  estate  belonging 
to  it,  and  said  matter  coming  on  to  be  heard,  it  is  ordered  that 
he,  the  said  C.  D.,  etc.  [conclude  as  in  order  made  upon  petition 
of  administrator]. 

NOTE.— California,  C.  C.  P.,  sec.  1545;  Alaska,  Codes,  pt.  4,  c  85,  sees. 
830-858;  Arizona,  C.  C,  par.  1786;  Idaho,  C.  C.  P.,  sec.  4180;  Montana, 
C.  C.  P.,  sec.  2679;  Nevada,  Comp.  Laws,  sec.  2923;  Nortii  Dakota,  Pro- 
bate Code,  sees.  6428-6442;  South  Dakota,  Probate  Code,  sees.  209- 
213;  Utah,  Rev.  Stats.,  sec.  3888;  Washington,  Ballinger's  Codes,  aec 
6266;  Wyoming,  Rev.  Stats.,  sec.  4790. 


No.   1439. — Order — Sale  of  Real  Estate — Guardian  to  Make. 

[Title  of  Court  and  Estate.] 

The  petition  of  M.  }.,  the  guardian  of  the  persons  and  estate 
of  the  above-named  minors  for  authority  to  sell  certain  land, 
coming  on  regularly  to  be  heard  the  fourteenth  day  of  February, 
igo6,  and  the  court  having  fully  heard  and  examined  the  proofs 
and  allegations  of  said  petition,  and  all  and  singular  the  law  and 
the  premises  being  by  the  court  here  understood  and  duly  con- 
sidered : 

Wherefore,  it  is  ordered,  adjudged  and  decreed,  that  said  M. 
J.,  the  guardian  of  the  persons  and  estates  of  VV.  J.,  C.  J.,  and 
E.  J.,  minors  as  aforesaid,  do  and  she  is  hereby  authorized  to 
sell  all  the  right,  title,  and  interest  of  her  said  wards,  in  and  to 
the  real  estate  hereinafter  described,  at  public  auction,  upon  the 
following  terms,  to  wit,  for  cash,  gold  coin  of  the  United  States, 
and  for  the  following  causes  or  reasons:  That  tlie  income  of  said 
estate  is  not  sufficient  to  maintain  and  educate  said  wards,  and 
it  zvould  also  be  for  the  benefit  of  said  wards  that  their  real  es- 
tate should  be  sold  in  order  that  tlie  proceeds  thereof  may  be  put 
out  at  interest. 

And  it  is  further  ordered  that  the  said  guardian  shall,  before 
the  said  sale,  give  bond  to  the  said  wards  in  the  penal  sum  of 
fifteen  hundred  dollars,  with  sufficient  security,  to  be  approved 
by  said  court  or  judge,  with  condition  to  sell  the  said  real  estate, 
and  make  return  thereof  in  the  manner  prescribed  by  law  for  the 
sales  of  real  estate  by  executors  and  administrators. 


824  New  Book  of  Forms. 

The  following  is  the  real  estate  hereby  authorized  to  be  sold, 
being  situated  in  the  city  and  county  of  San  Francisco,  state  of 
California,  and  bounded  and  described  as  follows,  to  wit:  [De- 
scription.] 

NOTE. — In  California,  if  it  appears  necessary,  or  for  the  benefit  of 
the  ward,  that  his  real  estate,  or  some  part  thereof,  should  be  sold, 
the  court  may  grant  an  order  therefor,  specifying  therein  the  causes 
or  reasons  why  the  sale  is  necessary  or  beneficial,  and  may,  if  the  same 
has  been  prayed  for  in  the  petition,  order  such  sale  to  be  made  either 
at  public  or  private  sale:  Cal.  C.  C.  P.,  sec.  1787,  and  the  same  as  in 
sales  by  executors.  Alaska,  Codes,  pt.  4,  c.  89,  sees.  918-939;  Arizona, 
C.  C,  par.  1997;  Idaho,  C.  C.  P.,  sec.  4366;  Montana,  C.  C.  P.,  sec.  3000; 
Nevada,  Comp.  Laws,  sec.  579;  New  Mexico,  Comp.  Laws,  sees.  1434- 
1477;  North  Dakota,  Probate  Code,  sees.  6561-6574;  Oregon,  Codes  and 
Statutes,  sec.  5592;  South  Dakota,  Probate  Code,  sees.  392-407;  Utah, 
Eev.  Stats.,  see.  5015;   Washington,  Ballinger's  Codes,  sec.  6411. 

No.  1440. — Order — Sale  of  Real  Estate — Hearing,  Day  Fixed. 

[Title  of  Court  and  Estate.] 

M.  J.,  the  administratrix  of  the  estate  of  T.  J.,  deceased,  hav- 
ing this  day  made  a  return  to  this  court  of  her  proceedings  un- 
der the  order  of  sale  of  real  estate  made  by  this  court,  on  the 
seventh  day  of  December,  igo6,  and  filed  the  said  return  in  the 
office  of  the  clerk  of  this  court,  it  is  ordered  and  directed  that 
Monday,  the  eighteenth  day  of  January,  igo6,  at  10  o'clock  A.  M., 
at  the  courtroom  of  this  court,  be,  and  the  same  is  hereby,  fixed 
for  the  hearing  upon  said  return,  and  that  notice  of  at  least  ten 
days  be  given  thereof,  by  the  clerk,  by  posting  notice  thereof,  ac- 
cording to  law   [or  by  publication,  if  ordered]. 

NOTE. — In  California,  a  hearing  upon  the  return  of  the  proceedings 
may  be  asked  for  in  the  return,  or  by  petition,  subsequently;  and  there- 
upon the  clerk  fixes  the  day  for  the  hearing,  of  which  notice  of  at  least 
ten  days  is  given  by  the  clerk,  by  notices  posted  in  three  public  places 
in  the  county,  or  by  publication  in  a  newspaper,  and  must  briefly  indi- 
cate the  land  sold,  the  sum  for  which  it  was  sold,  and  must  refer  to  the 
return  for  further  particulars:  Cal.  C.  C.  P.,  sec.  1552;  Alaska,  Codes, 
pt.  4,  c.  85,  sees.  830-858;  Arizona,  C.  C,  par.  1792;  Idaho,  C.  C.  P., 
sec.  4187;  Montana,  C.  C.  P.,  sec.  2690;  Nevada,  Comp.  Laws,  sec.  2931; 
New  Mexico,  Comp.  Laws,  sees.  2055,  2058,  2065-2086;  North  Dakota, 
Probate  Code,  sees.  6428-6459;  Oregon,  Codes  and  Statutes,  sec.  239; 
South  Dakota,  Probate  Code,  sees.  213-218;  Utah,  Rev.  Stats.,  sec.  3897; 
Wyoming,  Rev.  Stats.,  sec.  4798. 

No.  1441. — Order  Confirming  Sale  of    Contract    to  Purchase 

Land. 
[Title  of  Court  and  Estate.] 

[The  same  as  in  No.  1442  down  to  the  words  "the  best  sum 
bid,"  and  then  proceed  as  follows:]   It  is  therefore  ordered  that 


Orders.  825 

the  said  sale  of  the  contract  to  purchase  possessed  by  said  de- 
cedent hereinafter  described,  be  in  all  things  confirmed  and  that 
upon  pa>Tnent  of  said  price  the  said  executor  A.  B.  C,  as  execu- 
tor, is  ordered  to  execute  and  deliver  to  said  purchaser  an  assign- 
ment of  said  contract  described  as  follows,  to  wit:  [Description.] 

NOTE.— California,  C.  C.  P.,  eecs.  1565-1568,  1705;  Alaska,  Codes, 
pt.  4,  c  85,  sec.  847;  Arizona,  C.  C,  par.  1804;  Idaho,  C.  C.  P.,  see. 
4199;  Montana,  G.  a  P.,  sec  2697;  Nevada,  Comp.  Laws,  sec.  2939;  New 
Mexico,  Cur.  ;..  Laws,  sees.  3179,  3186;  North  Dakota,  Probate  Code,  seca. 
6447,  6448;  Oregon,  Codfs  and  Statutes,  sec.  1185;  South  Dakota,  Pro- 
bate Code,  sec  228;  Utah,  Rev.  Stats.,  sec  3902;  Washington,  Ballinger'a 
Codes,  sec  6283;  W7oming,  Eev.  Stats.,  sec  4805. 


No.  1442. — Order — Sale — Real  Estate — Confirmed. 
[Title  of  Court  and  Estate.] 

M.  J.,  the  administratrix  of  the  estate  of  T.  J.,  deceased,  hav- 
ing made  to  this  court,  and  filed  in  the  office  of  the  clerk  thereof, 
a  return  of  her  proceedings  under  the  order  of  sale  herein,  and 
said  matter,  coming  on  regularly  this  day  to  be  heard,  and  it 
haznng  been  prot'ed  to  the  court  that  in  pursuance  of  said  order 
of  sale,  and  as  ordered  by  the  court,  the  clerk  of  this  court  caused 
notice  of  the  tim.e  and  place  of  holding  said  sale  to  be  posted  up 
in  three  of  the  most  public  places  in  the  city  and  county  of  San 
Francisco,  in  which  the  land  ordered  to  be  sold  is  situated,  and 
to  be  published  in  the  D.  B.  B.,  a  newspaper  printed  and  pub- 
lished in  the  same  city  and  county,  for  three  weeks  successively 
next  before  such  sale,  in  which  order  of  sale  and  notice  the 
lands  and  tenements  to  be  sold  were  described  with  common  cer- 
tainty, as  follows,  to  wit:   [Description.] 

That  at  such  sale  S.  W.  became  the  purchaser  of  siid  real  es- 
tate for  the  sum  of  $?o,ooo,  he  being  the  highest  and  best  bidder, 
the  said  sum  being  the  highest  and  best  sum  bid. 

And  all  and  singular  the  law  and  the  premises  being  bv  the 
court  here  seen,  heard,  understood,  and  fully  considered,  where- 
fore it  is  by  the  court  ordered,  adjudged,  and  decreed,  that  the 
said  sale  be,  and  the  same  is  hereby,  confirmed  and  approved; 
and  the  proper  and  legal  conveyances  of  all  said  real  estate  are 
hereby  directed  to  be  executed  to  said  purchaser  by  said  adminis- 
tratrix. 

NOTE. — In  California,  if  it  appears  that  the  sale  was  legally  made 
and  fairly  coudut;tcd,  and  that  the  sum  bid  was  not  disproportionate  to 
the  value  of  the  property,  and  that  a  greater  sum.  as  above  specified, 
cannot  be  obt.-uncd,  or  if  an  increase  of  ten  per  cent  be  made  and  ac- 
cepted, the  court  must  make  an  order  confirming  the  sale,  and  directing 
conveyances  to  be  executed.  The  sale,  from  that  time,  is  confirmed  and 
valid,  and  a  certified  copy  of  the  order  confirming  it  and  directing  eon- 


826  New  Book  of  Forms. 

verances  to  be  expciitod  must  be  recordrd  in  the  office  of  tbe  reeorcler 
of  the  county  within  which  the  land  sold  is  situated:  Cal.  C.  C.  P.,  sec. 
1554;  Alaska,  Codes,  pt.  4,  e.  85,  sees.  830-858;  Arizona,  C.  C,  par.  1794; 
Idaho,  C.  C.  P.,  sec.  4191;  Montana,  C.  C.  P.,  sec.  26C7;  Nevada,  Comp. 
Laws,  sec.  2928;  North  Dakota,  Probate  Code,  sees.  6428-6459;  Oregon, 
Codes  and  Statutes,  sec.  1205;  South  Dakota,  Probate  Code,  sec.  218; 
Utah,  Rev.  Stats.,  sec.  3900;  Washington,  Ballinger^  Codes,  sec.  6274; 
Wyoming,  Eev.  Stats.,  sec.  4796. 


No.  1443. — Order  Confirming  Sale  of  Real  Estate  by  Author- 
ity of  WilL 

[Title  of  Court  and  Estate.] 

It  appearing  to  the  court  that  A.  B.,  the  executor  of  the  last 
will  of  C.  D.,  deceased,  did,  on  the  ^d  day  of  June,  1905,  sell  to 
E.  F.  all  that  real  estate  situated  in  the  said  city  and  county  of 
San  Francisco  and  described  as  follows,  to  wit  [description]  ; 
and  it  appearing  to  the  court  that  said  sale  was  made  as  directed 
by  the  last  will  of  said  C.  D.,  deceased,  and  said  matter  of  con- 
ferring the  said  sale  coming  on  this  day  to  be  heard,  it  is  or- 
dered that  said  sale  be,  and  the  same  is  hereby,  confirmed,  and 
that  said  executor  execute,  acknowledge  and  deliver  to  the  said 
E.  F.  a  deed  of  said  land  and  improvement  hereinabove  described. 

NOTE.— California,  C.  C.  P.,  sees.  1554,  1704;  Alaska,  Codes,  pt.  4,  c 
85,  sec.  844;  Arizona,  C.  C,  par.  1794;  Idaho,  C.  C.  P.,  sec.  4191;  Mon- 
tana, C.  C.  P.,  see.  2687;  Nevada,  Comp.  Laws,  sec.  2928;  New  Mexico, 
Comp.  Laws,  sees.  1946,  2020;  North  Dakota,  Probate  Code,  sec.  6444; 
Oregon,  Codes  and  Statutes,  sec.  1205;  South  Dakota,  Probate  Code,  sec 
224;  Utah,  Rev.  Stats.,  sec.  3900;  Washington,  Ballinger's  Codes,  sec 
6274;  Wyoming,  Rev.  Stats.,  sec.  4796. 


No.  1444. — Order  Confirming  Sale  Made  in  Open  Court, 

[Title  of  Court  and  Estate.] 

[The  same  as  in  No.  1442,  down  to  "the  sum  of  $20,000":]] 
Being  the  highest  and  best  sum  bid,  and  then  and  there  such  pro- 
ceedings were  had  that  in  open  court  A.  B.  C.  in  writing  offered 
the  sum  of  $20,96^  for  said  land  and  tenements  upon  the  terras 
described  in  the  order  of  sale,  and  he  being  a  responsible  per- 
son, the  court  accepted  said  offer  and  confirmed  said  sale  to  him 
accordingly. 

And  all  and  singular  the  law  and  the  premises  being  by  the 
court  here  seen,  heard,  understood,  and  fully  considered,  where- 
fore it  is  by  the  court  ordered,  adjudged,  and  decreed,  that  the 
said  sale  be,  and  the  same  is  hereby,  confirmed  and  approved ; 
and  the  proper  and  legal  conveyances  of  all  said  real  estate  are 
hereby  directed  to  be  executed  to  said  A.  B.  C,  purchaser  by  said 
administratrix. 


Orders.  827 

It  is  therefore  ordered  that  the  said  sale  to  A.  B.  C.  for  the 
sum  of  $?n,Q6^  be,  and  the  same  is  hereby,  confirmed,  and  upon 
payment  of  the  price  and  compliance  with  the  terms  of  sale  as 
aforesaid  by  said  purchaser,  the  said  E.  F.,  as  administrator  of 
said  estate,  is  directed  to  execute,  acknowlcdc^e  and  deliver  to 
said  purchaser  a  deed  of  conveyance  of  all  that  land  bounded  and 
described  as  follows,  to  wit:    [Description.] 

NOTE.— California,  C.  C.  P.,  sees.  1552,  1554,  1709;  Alaska,  Codes, 
pt.  4.  p.  85.  sees.  841,  842;  Arizona.  C.  C,  par.  1794;  Idaho,  C.  C.  P., 
sec.  4191;  Montana,  C.  C.  P.,  sec.  2687;  Nevada,  Corap.  Laws,  sec.  2928; 
Oregon.  Cofles  and  Statutes,  sec.  1205;  North  Dakota,  Probate  Code, 
sees.  64.39-6440;  Sonth  Dakota,  Probate  Code,  sees.  216-219;  Utah,  Rev. 
Rtats..  sec.  3900;  Washington,  Ballinger's  Codes,  sec.  6274j  Wyoming, 
Rev.  Stats.,  sec.  4796. 


No.  1445. — Order — Sale — Real  Estate — Vacated. 
[Title  of  Court  and  Estate.] 

The  return  of  the  proceedings  on  sale  of  real  estate  in  the 
matter  of  this  estate  coming  on  to  be  heard  this  day;  and  it 
appearing  to  the  court  that  the  sum  bid  at  the  sale  returned  as 
aforesaid  was  disproportionate  to  the  value  of  the  property  of- 
fered for  sale ;  and  it  appearing  that  a  sum  exceeding  the  sum 
bid  and  reported  at  least  ten  per  cent,  exclusive  of  the  expenses 
of  a  new  sale,  can  be  obtained,  it  is  ordered  that  said  sale  be,  and 
it  is  hereby,  vacated,  and  it  is  ordered,  etc.  [proceed  and  Unish 
the  same  as  in  the  order  of  sale  following  which  the  prior  sale 
was  made]. 

NOTE.— California,  C.  C.  P.,  sec.  1525;  Alaska,  Codes,  pt.  4,  c.  85, 
sees.  830-858;  Arizona,  C.  C,  par.  1770;  Idaho,  C.  C.  P..  sec.  4164;  Mon- 
tana, C.  C.  P.,  sec.  2653;  Nevada,  Corap.  Laws,  sec.  2911;  New  Mexico, 
Comp.  Laws,  sees.  2052-2055,  2065-2086;  North  Dakota,  Probate  Code, 
sees.  6428-6459;  South  Dakota,  Probate  Code,  sec  216;  Washington, 
Ballinger's  Codes,  sec.  6254. 


No.  1446. — Order — Summons,  Publication  of. 
[Title  of  Court  and  Cause.] 

Upon  reading  and  filing  the  aflfidavit  of  /.  D.,  and  it  satisfac- 
torily appearing  therefrom  that  the  defendant,  R.  R.,  has  de- 
parted from,  resides  out  of  the  state,  and  cannot,  after  due  dili- 
gence, be  found  wiihin  this  state;  and  it  also  appearing,  fram  the 
complaint  herein  duly  verified  by  said  plaintiff,  that  a  good  cause 
of  action  exists  in  this  action,  in  favor  of  the  plaintiflf  therein, 
and  against  the  said  defendant,  and  that  the  said  defendant  R. 
R.,  is  a  necessary  and  proper  party  defendant  thereto;  and  it 


82S  New  Book  of  Forms. 

further  appearing  that  a  summons  has  been  duly  issued  out  of 
said  court  in  this  action,  and  that  personal  service  of  the  same 
cannot  be  made  upon  the  said  defendant,  R.  R.,  for  the  reasons 
hereinbefore  contained,  and  by  the  said  affidavit  made  to  appear ; 
on  motion  of  C.  F.,  Esq.,  attorney  for  the  plaintiff,  it  is  ordered 
that  the  sers-ice  of  the  summons  in  this  action  be  made  upon  the 
defendant.  R.  R.,  by  publication  thereof  in  the  D.  B.  B.,  a  news- 
paper published  at  said  city  and  county  of  San  Francisco,  hereby 
desigiiated  as  the  newspaper  most  likely  to  give  notice  to  said 
defendant ;  that  such  publication  be  made  at  least  once  a  week 
for  tivo  months. 

And  it  further  in  like  manner  satisfactorily  appearing  to  me 
that  the  residence  of  said  defendant  is  knozvn  to  he  at  the  city  of 
Dubuque,  in  the  county  of  Dubuque,  state  of  lozva,  it  is  ordered 
and  directed  that  a  copy  of  the  summons  and  complaint  in  this 
suit  be  forthwith  deposited  in  the  United  States  postoffice,  at  the 
city  and  county  of  San  Francisco,  postpaid,  directed  to  said  de- 
fendant, at  his  said  place  of  residence. 

(All  courts.) 

NOTE.— California,  C.  0.  P.,  sec.  412;  Alasta.  Codes,  pt.  4,  c.  4,  sees. 
42-53;  Arizona,  C.  C,  pars.  1.329,  13-30;  Idalin,  C.  C.  P..  sec.  3196;  Nevada, 
Comp.  Laws,  sees.  3125,  3126;  Orpffon,  Codes  and  Statutes,  sees.  56-60; 
South  Dakota,  C.  C.  P.,  sees.  112-116. 


No.    1447. — Order   Extending   Time. 

[Title  of  Court  and  Cause.] 

Good  cause  being  shown  therefor,  it  is  ordered  that  the  time 
for  defendant  to  answer  the  complaint  in  the  above-entitled  ac- 
tion is  extended  ten  days  from  the  date  of  this  order. 

NOTE. — When  an  act  to  be  done,  as  provided  in  the  Code  of  Civil 
Procedure,  relates  to  the  pleadings  in  the  action,  the  undertakings  to 
be  filed,  the  justification  of  sureties,  the  preparation  of  statements,  or 
of  bills  of  exceptions,  or  of  amendments  thereto,  or  to  the  service  of 
notices  other  than  of  appeal,  the  time  allowed  by  the  code  may  be  ex- 
tended, upon  good  cause  shown  by  the  judge  of  the  superior  court,  in 
and  for  the  county  in  which  the  action  is  pending,  or  by  the  judge  who 
presided  at  the  trial  of  said  action,  but  such  extension  shall  not  exceed 
thirty  days,  without  the  consent  of  the  adverse  party.  When  it  ap- 
pears to  the  judge  to  whom  said  application  is  made  that  the  attorney 
of  record  for  the  party  applying  for  said  extension  is  actually  engaged 
in  attendance  upon  a  session  of  the  legislature  of  this  state,  as  a  mem- 
ber thereof,  in  which  case  it  shall  be  the  duty  of  the  judge  to  extend 
said  time  until  the  session  of  the  legislature  adjourns,  and  thirty  days 
thereafter;  but  such  extension  shall  not  exceed  thirty  days  without  tlie 
consent  of  the  adverse  party:  Cal.  C.  C.  P.,  sees.  1005,  1054;  Idaho, 
C.  C.  P.,  sees.  3708,  3744;  Montana,  C.  C.  P.,  sees.  1822-1897;  North 
Dakota,  C.  C.  P.,  see.  57.'';  South  Dakota,  C.  C.  P.,  sees.  550,  551;  Utah, 
Eev.  Stats.,  sees.  3325-3329. 


Orders.  829 


No.  1448. — Order — Time  Shortened. 

[Title  of  Court  and  Cause.] 

Good  cause  appearing-  therefor,  it  is  hereby  ordered  that  the 
time  of  service  of  the  fore.going  notice  and  affidavit  and  of  this 
order  be,  and  the  same  is  hereby,  shortened,  and  that  the  same 
be  served  on  or  before  Monday,  the  2yth  day  of  February,  A.  D. 
1905. 

It  is  further  ordered  that  the  deposition  of  the  witness  in  the 
said  notice  named  be  taken  before  the  officer  named  and  at  the 
time  and  place  specified  in  the  said  notice. 

NOTE.— California,  C.  C.  P.,  sees.  1005,  20.'?];  Alaska,  Codes,  nt.  4, 
r.  64.  sees.  642-658;  Arizona,  C.  C.  pars.  2.506-2532;  Idaho,  C.  C.  P.,  sees. 
4497-4529;  Montana.  C.  C.  P.,  sees.  1822,  3360;  Nevada,  Comp.  Laws, 
sec.  3503;  New  Mexico,  Corap.  Laws,  sees.  3041-3067;  North  Dakota, 
C.  C.  P.,  sees.  5671-5686,  5721;  Orefron,  Codes  and  Statutes,  sec.  835; 
South  Dakota.  C.  C.  P.,  sec.  515;  Utah,  Rev.  Stats.,  sees.  3325,  3456; 
Washington,  Ballinger's  Codes,  sec.  6020. 


No.   1449. — Order — Transferring  Cause. 

[Title  of  Court  and  Cause.] 

Tt  being  shown  to  the  court,  by  E.  T.,  Esq.,  of  counsel  for  the 
defense,  that  the  judge  of  this  court  was  heretofore  of  counsel 
in  a  case  involving  the  same  title  which  is  in  issue  in  this  cause : 
Wherefore,  it  is  ordered,  that  this  cause  be  transferred  to  the  su- 
perior court  of  Sutter  county  for  trial.  The  costs  of  this  terra 
to  abide  the  event  of  the  suit. 

NOTE.— California,  C.  C.  P.,  sec.  398;  Arizona,  C.  C,  pars.  1701-1704; 
Idaho,  C.  C.  P.,  sees.  3179-3187;  Montana,  C.  C.  P.,  sec.  616;  Nevada^ 
Comp.  Laws,  sec.  3116;  New  Mexico,  Comp.  Laws,  sec.  2879;  North 
Dakota,  C.  C.  P.,  sees.  5421-5425;  Oregon,  Codes  and  Statutes,  see.  45; 
South  Dakota,  Probate  Code,  sec.  13;  South  Dakota.  C.  C.  P.,  sec.  102* 
Utah,  Rov.  Stats.,  sec.  102;  "Washington,  Ballinger's  Codes,  sec.  4857 
"Wyoming,   Rev.   Stats.,   sec.   4282;    Colorado,   Mill's   Stats.,   see.   4631. 


No.  1450. — Order — Will  to  Produce. 

[Title  of  Court  and  Estate.] 

It  appearing  that  /.  B.  has  in  his  possession  a  will  executed 
hy  J.  G.  P.,  it  is  ordered  that  he,  the  said  /.  B.,  produce  the  same 
in  this  court  on  Monday,  May  12,  1906,  or  show  cause  then  and 
there  why  he  should  not  produce  it. 


SjO  New  Book  of  Forms. 

NOTE. — In  California,  if  the  petition  alleges  that  a  win  is  in  the 
possession  of  a  person  not  joining  in  the  petition,  an  order  will  be  made 
directing  him  to  produce  it  at  a  time  stated  in  the  order:  Cal.  C.  C.  P., 
sec.  1302;  Arizona,  C.  C,  par.  1604;  Idaho,  C.  C.  P.,  sec.  3999;  Montana, 
C.  C.  P.,  sec.  2324;  Nevada,  Comp.  Laws,  sees.  2793,  2794;  North  Dakota, 
Probate  Code,  sees.  6283-6285;  South  Dakota,  Probate  Code,  sees.  37,  38; 
Washington,  Ballinger's  Codes,  sec.  6098;  Wyoming,  Bev.  Stata^  sec. 
4575. 


No.  1 45 1. — Order — Will  Contest,  Attorney  to. 

[Title  of  Court  and  Estate.] 

It  is  ordered  by  the  court  that  R.  H.,  Esq.,  attorney  at  law, 
be,  and  he  hereby  is,  appointed  attorney  to  appear  in  the  matter 
of  said  estate  and  contest  the  will  of  said  deceased  now  on  file 
in  said  court,  on  behalf  of  /.  C.  B.,  Esq.,  the  son  of  said  deceased, 
mentioned  in  said  will.  [The  same  order  may  be  used  on  behalf 
of  ail  or  any  other  person.] 

NOTE. — In  California,  any  person  interested  may  appear  and  contest 
the  will.  Devisees,  legatees,  or  heirs  of  an  estate  may  contest  the  will 
through  their  guardians,  or  attorneys  appointed  by  themselves  or  by  the 
court  for  that  purpose.  It  would  also  seem  that  after  the  attorney 
has  been  appointed  that  the  guardian  of  the  estate  of  the  minor  would 
have  the  right  to  uphold  the  will  [on  behalf  of  his  ward]  even  against 
the  opposition  of  the  attorney,  appointed  by  the  court.  Especially  would 
this  be  so  when  a  parent  is  guardian  of  the  estate.  A  parent's  interest 
in  his  child's  welfare  will  be  presumed  to  be  greater  than  that  of  an 
attorney  appointed  by  the  court  who  [of  course]  expects  a  fee  out  of 
the  estate.  Point  d 'argent,  point  de  Suisse:  Cal.  C.  C.  P.,  see.  1307; 
Arizona.  C.  C,  par.  1609;  Idaho,  C.  C.  P.,  sec.  400o;  Montana,  C.  C.  P., 
sec.  2.''.29;  Nevada,  Comp.  Laws,  sec.  2801;  South  Dakota,  Probate  Code, 
sec.  43;  Wyoming,  Kev.  Stats.,  see.  4601. 


No.    1452. — Order   "Requiring   Person   Who   has   Will   in   His 
Possession  to   Produce   It. 

[Title  of  Court  and  Estate.] 

The  petition  of  A.  B.  in  the  above-entitled  matter  praying  for 
the  admission  to  probate  of  the  last  will  of  C.  D.,  deceased,  hav- 
ing been  filed,  alleging  that  the  last  will  of  said  deceased  is  in 
the  possession  of  E.  P.,  and  it  appearing  to  the  court  that  said 
allegation  is  true  [or  it  also  appearing  that  said  B.  F.  has,  after 
request,  refused  to  produce  said  will],  it  is  ordered  that  said  B. 
F.  produce  before  the  court  on  Friday,  June  ^d,  igo6,  at  10 
o'clock  A.  M..  the  bst  will  of  said  deceTied,  and  that  this  ordex 
be  served  upon  him  at  least  ten  days  prior  to  said  June  jd. 


Orders.  831 

NOTE. — Tf  the  possessor  neglects  or  refuses  to  produce  the  will  (if 
he  has  it  in  his  possession),  he  may  be  committed  to  the  jail  of  the 
county  ami  koi)t  in  close  conflnement  until  he  produces  it:  Cal.  C.  C.  P., 
Bcc.  1302;  Alaska,  Codes,  pt.  4,  c.  80,  sees.  772-800;  Arizona.  C.  C,  par. 
1604;  Idaho,  C.  C.  P.,  sec.  .3999;  Montana,  C.  C.  P.,  sec.  2,'?24;  Nevada, 
Comp.  Laws,  sec.  279.3;  New  Mexico,  Corap.  Laws,  sees.  1935-2094;  North 
Dakota,  Probate  Code,  sec.  6285;  Oregon,  Codes  and  Statutes,  sec.  110.5; 
South  Dakota,  Probate  Code,  sec.  38;  Washington,  Ballinger's  Codes, 
sec.  6098;  Wyoming,  Rev.  Stats.,  sec.  4675. 


No.  1453. — Order — Will  to  Probate  Admitted. 

[Title  of  Court  and  Estate.] 

The  petition  of  D.  B.  heretofore  filed  in  the  above-entitled  mat- 
ter praying  for  the  admission  to  probate  of  a  certain  document 
filed  herein,  purporting  to  be  the  last  will  and  testament  of  H.  H. 
M.,  deceased,  and  also  praying  to  be  appointed  executor  thereof, 
coming  on  this  day  to  be  heard;  and  said  matter  having  been 
submitted,  it  is  ordered  that  said  document  be  admitted  to  pro- 
bate as  the  last  will  and  testament  of  said  deceased,  that  said 
D.  B.  be,  and  he  is  hereby,  appointed  executor  thereof,  and  that 
letters  testamentary  thereon  issue  to  said  petitioner  upon  taking 
the  oath  required  by  law, 

NOTE. — In  California,  if  no  person  F.ppears  to  contest  the  probate  of 
a  will,  the  court  may  admit  it  to  probate  on  the  testimonv  of  one  of  the 
subscribing  witnesses  only,  if  he  testifies  that  the  will  was  executed  in 
all  particulars  as  required  by  law,  and  that  the  testator  was  of  sound 
mind  at  the  time  of  its  execution:  Cal.  C.  C.  P.,  sec.  1388. 

This  form  is  drawn  in  the  spirit  of  the  liberal  langi^age  of  section 
1704,  Code  of  Civil  Procedure,  providing  "that  orders  and  decrees  made 
by  the  court,  or  a  judge  thereon,  in  probate  proceedings,  need  not  recite 
the  existence  of  facts,  or  the  performance  of  acts  upon  which  the  juris- 
diction of  the  court  or  judge  may  depend,  but  it  shall  only  be  necessary 
that  they  contain  the  matters  ordered  or  adjudged,  except  as  otherwise 
provided."  It  may  be  used  in  California:  Ckl.  C.  C.  P.,  sec.  1704; 
Alaska,  Codes,  pt.  4,  c.  80,  sees.  772-800;  Arizona,  C.  C,  par.  1667.  1925; 
Idaho,  C.  C.  P.,  sec.  4062;  Montana,  C.  C.  P.,  sees.  2471,  2910;  Nevada', 
Comp.  Laws,  sees.  1903,  3032;  North  Dakota,  Probate  Code.  sees.  6283- 
6301;  Oregon,  Laws  1903,  p.  216;  South  Dakota,  Probate  Code,  sec.  69; 
rtah,  Rov.  Stats.,  sees.  3827,  4039;  Washington.  Ballinger's  Codes,  sec'. 
6147;  Wyomiug,  Eev.  Stats.,  sec.  4661,  Laws  1903,  p.  29. 


No.  1454. — Order — Will  to  Probate,  Admitted. 

[Title  of  Court  and  Estate.] 

The  petition  of  T.  M  and  G.  B.,  heretofore  filed  in  the  above- 
entitled  matter,  praying  for  tlie  admission  to  probate  of  a  cer- 
tain document  filed  herein,  purporting  to  be  the  last  will  and 
testament  of  P.  C,  deceased,  and  to  be  appointed  executor  tliereof, 


832  New  Book  of  Forms. 

and  that  letters  testamentary  be  granted  to  said  petitioner,  this 
day  regnilarly  coming  on  to  be  heard,  and  due  proof  being  made 
that  notice  has  been  duly  given  of  the  time  appointed  for  prov- 
ing said  will,  and  for  hearing  said  petition,  according  to  law, 
to  all  parties  interested;  and,  after  examining  the  said  petitioner 
and  M.  K.  and  H.  W.,  the  subscribing  witnesses  to  said  will,  from 
which  it  appears  that  said  document  is  the  last  will  and  testament 
of  said  P.  C,  deceased ;  that  it  was  executed  in  all  particulars 
as  required  by  law,  and  that  the  said  testator,  at  the  time  of 
the  execution  of  the  same,  was  of  sound  and  disposing  mind,  and 
not  acting  under  undue  influence,  menace,  fraud,  or  duress,  and 
that  said  testator  died  on  the  eleventh  day  of  April,  igo6;  that 
he  was  a  resident  of  the  county  of  Sacramento,  in  the  state  of 
California,  at  the  time  of  his  death ;  that  the  value  of  said  estate 
is  estimated  at  one  hundred  and  tzventy-Uve  thousand  dollars : 

It  is  ordered  that  the  said  document  heretofore  filed,  purport- 
ing to  be  the  last  will  and  testament  of  said  P.  C,  deceased,  be 
admitted  to  probate  as  the  last  will  and  testament  of  said  deceased  ; 
that  said  T.  M.  and  G.  B.  he,  and  they  are  hereby,  appointed  ex- 
ecutors thereof,  and  that  letters  testamentary  thereon  issue  to  said 
petitioners  upon  taking  the  oath  required  by  law.  it  being  expressly 
provided  in  said  will  that  no  bond  shall  be  required  of  the  exec- 
utor. 

NOTE. — The  above  form  contains  306  words.  The  one  immediately 
preceding  No.  1453,  contains  107.  One  is  as  good  as  the  other.  Prior 
to  using  either  form  consult  Code  of  Civil  Procedure,  section  1704. 
The  writer  of  this  note  advises  young  lawyers  to  commit  section  1704  to 
memory,  and  never  forget  it. 

No.  1455. — Order  Appointing  Administrator  with  the  Will 
Annexed  When  Executor's  Right  to  Appointment  is 
Forfeited. 

[Title  of  Court  and  Estate.] 

The  petition  of  ^.  B.  in  the  above-entitled  matter  praying  for 
the  admission  to  probate  of  a  paper  filed  in  this  court  purporting 
to  be  the  last  will  of  C.  D.,  deceased,  also  praying  that  he  may 
be  appointed  administrator  of  the  estate  of  said  deceased,  with 
the  will  annexed,  upon  the  ground  that  B.  P.,  the  person  named 
in  said  will  as  the  executor  thereof,  has  failed  to  petition  this 
court  for  the  probate  of  said  will,  and  that  letters  testamentary 
be  issued  to  him,  for  thirty  days  after  he  had  knowledge  of  the 
death  of  said  testator,  and  said  matter  having  been  submitted : 

It  is  ordered  that  said  document  be  admitted  to  probate  as  the 
last  will  of  C.  D.,  deceased,  and  the  said  A.  B.  be,  and  he  is 
hereby,  appointed  administrator  of  said  estate  with  the  will  an- 
nexed, and  that  letters  issue  to  him  upon  filing  a  bond  in  the  sura 
of  $10,000  and  upon  his  taking  the  oath  required  by  law. 


OliDERS.  833 

NOTE. — T\^o  statutory  ooriflitinns  upon  whiVh  snch  appointmont  may 
b«  made  arc  recited  in   rTalifornia  Code  of  Civil  Profednre,  sec.   1301. 

An  appointment  on  similar  facts  was  sustained  in  Estate  of  Mc- 
Donald, lis  Cal.  277,  50  Pac.  399;  Arizona,  C.  C,  par.  1603;  Idaho,  C.  C. 
P.,  sec.  3998;  Montana,  C.  C.  P.,  sec.  2323;  North  Dakota,  Probate  Code, 
Bee.  6371;  South  Dakota,  Probate  Code,  sec.  37;  Utah,  Bev.  Stats.,  sec. 
3788;  Wyoming,  Rev.  Stats.,  sec.  4574. 


No.    1456. — Order   Appointing  Trustee    (Under  Will). 

[Title  of  Court  and  Estate.] 

A.  B.,  the  trustee  appointed  by  the  will  of  C.  D.,  deceased,  hav- 
ing resigned,  and  his  resignation  having  been  accepted,  it  is  or- 
dered that  G.  L.  be,  and  he  is  hereby,  appointed  as  trustee  under 
the  will  of  said  deceased,  to  fill  the  vacancy  in  said  trusteeship 
caused  by  the  resignation  of  the  said  A.  B.,'hut  before  acting  as 
trustee  he  shall  give  a  bond  in  the  sum  of  of  $10,000  in  form  as 
required  by  law,  and  that  thereupon  he  shall  have  power  as  such 
trustee  as  is  provided  in  said  will. 

NOTE.— California,  C.  C.  P.,  sees.  1702,  1705. 


No.  1457.— Order— Probate  of  Will  Revoked, 

[Title  of  Court  and  Estate.] 

It  is  ordered  that  the  order  made  May  p,  iqo6,  admitting  to 
probate  a  document  purporting  to  be  the  last  will  of  H.  M.  F., 
deceased,  be,  and  the  same  is  hereby,  annulled  and  revoked. 

NOTE. — In  California,  when  a  will  is  contested  after  probate  and  the 
will  held  to  be  invalid  nn  order  is  made  annulling  and  revoking  the 
order  admitting  it  to  probate:  Cal.  C.  C.  P.,  sec.  1330;  Arizona,  C.  C, 
par.  1624;  Idaho,  C.  C.  P.,  sec.  4019;  Montana,  C.  C.  P.,  sec.  2362;  North 
Dakota,  Probate  Code.  sec.  6312;  South  Dakota,  Probate  Code,  sees.  58- 
61;  Wyoming,  Bev.  Stats.,  sec.  4609. 


No.    1458. — Order — Values,    Fixing — Inheritance    Tax. 

[Title  of  Court  and  Estate.] 

On  this,  the  3d  day  of  August,  A.  D.  ipo^,  came  on  to  be  heard 
the  report  of  /.  S.,  appraiser  appointed  to  appraise  the  property 
belonging  to  the  estate  of  S.  D.,  deceased,  subject  to  the  tax  im- 
posed by  the  laws  of  this  state,  establishing  a  tax  on  gifts,  lega- 
cies, inheritances,  bequests,  devises,  successions  and  transfers. 

And  it  appearing  that  due  notice  has  been  given  to  all  persons 
interested  therein  of  the  time  and  place  for  assessing  and  tixing 
New  Forms — 53 


834  New  Book  of  Forms. 

the  cash  values  of  said  property  and  determining  the  amount  of 
succession  tax  to  be  imposed  upon  said  property. 

And  R.  H.,  Esq.,  Attorney  at  Law,  appearing  in  support  of 
said  report,  and  /.  D.,  heir  at  law  of  said  deceased,  appearing  by 
H.  J.,  her  counsel;  and  the  court  having  heard  and  considered 
said  matter,  and  it  being  submitted : 

It  is  ordered  that  the  cash  values  and  the  assessment  upon  said 
property  be  fixed,  and  that  the  amount  of  the  tax  to  be  imposed 
upon  the  said  property  is  hereby  fixed  as  follows :  Upon  all  that 
real  estate  distributed  to  said  J.  D.,  as  successor,  by  order  of  this 
court,  as  heir  at  law  of  S.  D.,  deceased,  described  as  follows:  [De- 
scription of  the  land.]     The  amount  of  tax  is  $8,y^0. 

NOTE.— Act  of  March  20,  1905,  Stats.,  p.  341,  sec.  14. 


PETITION. 


No,  1459. — Petition — Probate  of  Will. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  of  the  County  of  Sacror 
mcnto,  State  of  California: 

The  petition  of  T.  M.  and  G.  B.,  of  the  county  of  Sacramento, 
state  of  California,  respectfully  shows : 

That  P.  C.  died  on  or  about  the  eleventh  day  of  AprU,  1905, 
at  the  county  of  Sacramento. 

That  said' deceased,  at  the  time  of  his  death,  was  a  resident  of 
the  county  of  Sacramento,  in  said  state  of  California,  and  left 
estate  therein  and  in  San  Francisco,  consisting  of  real  and  per- 
sonal property. 

That  the  probable  value  and  character  of  the  said  property  are 
as  follows,  to  wit:  The  real  estate  consists  of  a  lot  of  land  in  the 
city  and  county  of  San  Francisco,  of  the  value  of  fifty  thousand 
dollars,  or  thereabouts,  and  of  four  lots  in  the  city  of  Sacramento, 
of  the  value  of  tzventy-five  thousand  dollars  or  thereabouts.  One 
of  said  lots  in  Sacramento  was  the  residence  and  homestead  of 
said  P.  C.  at  the  time  of  his  death.  All  of  said  real  estate  is 
improved,  and  yields  rents  and  income  of  one  thousand  dollars 
per  month.  The  personal  property  consists  of  his  stock  in  trade, 
of  the  value  of  twenty  thousand  dollars  or  thereabouts,  and  of 
household  furniture,  of  the  value  of  ten  thousand  dollars  or  there- 
abouts.    The  lot  of  land  in  San  Francisco  is  separate  property. 


Petition.  835 

the  same  hazntig  been  owned  by  him  before  marriage.  All  the 
othei-  estate,  both  real  and  personal,  is  common  property,  the 
same  ha^nng  been  acquired  by  him  after  his  marriage. 

That  the  total  estate  of  said  deceased  does  not  exceed  in  value 
the  sum  of  one  hundred  and  twenty-five  thousand  dollars. 

That  said  deceased  left  a  will  bearing  date  the  ninth  day  of 
April,  igoff,  in  the  possession  of  his  zvidow,  J.  C,  which  your  peti- 
tioners believe  and  therefore  allege  to  be  the  last  will  and  testa- 
ment cf  said  deceased,  and  which  is  herewith  presented  to  said 
superior  court. 

That  your  petitioners,  T.  M.  and  G.  B.,  named  in  said  will  as 
executors  thereof,  tonsent  to  act  as  such;  and  /.  C,  aged  about 
forty  years,  residing  at  said  city  of  Sacramento,  widozv  of  said 
deceased,  C.  C,  the  son  of  said  deceased,  aged  about  eighteen 
years,  and  E.  C,  the  daughter  of  said  deceased,  aged  about  sixteen 
years,  residing  also  at  said  City  of  Sacramento,  are  named  therein 
as  devisees. 

[Or,  the  said  will  zvas  entirely  written,  signed,  and  dated  by 
said  testator.] 

That  the  subscribing  witnesses  to  said  will  are  M.  K.,  residing 
in  the  said  city  of  Sacramento,  and  H.  IV.,  also  residing  in  the 
said  city  of  Sacramento. 

That  the  next  of  kin  of  said  testator,  whom  your  petitioners 
are  advised  and  believe,  and  therefore  allege  to  be  the  heirs  at 
law  of  said  testator,  and  the  names,  ages,  and  residences  of 
said  heirs  are  his  said  surviving  wife,  J.  C,  aged  about  forty 
years,  residing  at  said  city  of  Sacramento,  and  his  said  children, 
C.  C,  aged  about  eighteen  years  and  E.  C,  aged  about  sixteen 
years,   residing  at   said   city   of  Sacramento. 

That  at  the  time  said  will  was  executed,  to  wit,  on  the  said 
ninth  day  of  April,  iQOf,,  the  said  testator  was  over  the  age  of 
eighteen  years,  to  wit,  of  the  age  of  forty-five  years  or  there- 
abouts, and  was  of  sound  and  disposing  mind,  and  not  acting  un- 
der duress,  menace,  fraud,  or  undue  influence,  and  was  in  every 
respect  competent,  by  last  will,  to  dispose  of  all  his  estate. 

[That  said  zvill  is  in  ziriting,  signed  by  the  said  testator,  and 
attested  by  said  subscribing  witnesses,  at  the  request  of  said  tes- 
tator, subscribing  their  names  'j  the  said  zvill  in  the  presence  of 
the  said  testator,  and  in  the  presence  of  each  other;  and  that,  as 
your  petitioners  are  adz'ised,  and  therefore  allege,  said  zvitnesses, 
at  the  time  of  attesting  the  execution  of  said  zvill,  were,  and  are 
nozv,  competent.] 

Wherefore,  your  petitioners  pray  that  the  said  will  may  be  ad- 
mitted to  probate,  and  that  letters  testamentary  be  issued  to  your 
petitioners,  and  for  that  purpose  a  time  for  proving  said  will  be 
appointed,  and  that  all  persons  interested  be  notified  and  directed 


836  New  Book  of  Forms. 

to  appear  at  the  time  appointed  for  proving  the  same;  and  that 
all  other  necessary  and  proper  orders  may  be  made  in  the  prem- 
ises. 

NOTE. — In  California,  an  executor,  devisee,  or  any  other  person  in- 
l;-restod  in  the  estate,  may,  at  any  time,  petition  the  court  to  have  the 
T>  !1  proved,  whether  the  same  be  in  writing,  in  his  possession  or  not,  or 
is  'ost  or  destroyed,  or  beyond  the  jurisdiction  of  the  state,  or  a  nun- 
cujative  will:   Cal.  C.  C.  P.,  sec.  1299. 

Siich  petition  must  show:  1,  The  jurisdictional  facts;  2.  Whether  the 
perscn  named  as  executor  consents  to  act,  or  renounces  his  right  to  let- 
ters; 3.  The  names,  ages,  and  residence  of  the  heirs  and  devisees,  so 
far  as  known  to  the  petitioner;  4.  The  probable  value  and  character  of 
the  pronerty;  .5.  The  name  of  the  person  for  whom  letters  are  prayed. 
No  defect  of  form,  or  in  the  statement  of  jurisdictional  facts  actually 
existing,  voids  the  probate  of  a  will:  Id.,  sec.  1300;  Alaska,  Codes,  pt. 
5,  c.  80.  sees.  772,  800;  Arizona,  C.  C,  para.  1601,  1602;  Idaho,  C.  C.  P., 
sees.  .'^996,  3997;  Montana,  C.  C.  P.,  sees.  2321-2832;  Nevada,  Comp.  Laws, 
SfcC.  2789;  New  Mexico,  Comp.  Laws,  sees.  1935-2094;  North  Dakota, 
Probate  Code,  sec.  6290;  Oregon,  Codes  and  Statutes,  sec.  1119;  South 
Dakota.  Probate  Code,  sees.  34-36;  Utah,  Eev.  Stats.,  sec.  3787;  Washing- 
ton, Ballinger's  Codes,  sec.  9064;  Wyoming,  Rev.  Stats.,  see.  4573. 


No.    1460. — Petition — Probate   of  Will  not   in   Possession  of 

Petitioner. 

[Title  of  Court  and  Estate.] 

[Commence  as  in  Petition  to  Probate  Will,  and  then  insert:] 

That  said  deceased  left  a  will  bearing  date  the  ninth  day  of 
April,  igo4,  which  your  petitioners  believe  and  therefore  allege 
to  be  the  last  will  and  testament  of  said  deceased,  and  which  will 
is,  as  petitioner  is  informed  and  believes,  and  therefore  alleges, 
in  the  possession  of  /.  G.,  and  he,  the  said  7.  G.,  has  been  re- 
quested to  file  said  will  in  the  court  having  jurisdiction  of  this 
estate,  but  he  has  refused,  and  still  does  refuse,  to  either  file  said 
will  or  deliver  the  same  to  this  petitioner,  or  any  other  person. 

[Continue  as  in  said  form  down  to  the  last  paragraph,  and  then 
conclude:] 

Wherefore  your  petitioner  prays  for  an  order  directing  the  said 
/.  G.  to  produce  said  will  in  this  court  at  a  time  named  in  said 
order ;  and  your  petitioners  pray  that  the  said  will  may  be  ad- 
mitted to  probate,  and  that  letters  testamentary  be  issued  to  your 
petitioner,  and  for  that  purpose  a  time  for  proving  said  will  be  ap- 
pointed, and  that  all  persons  interested  be  notified  and  directed 
to  appear  at  the  time  appointed  for  proving  the  same ;  and  that 
all  other  necessary  and  proper  orders  may  be  made  in  the  prem- 
ises. 

NOTE. — California,  C.  C.  P.,  sec.  1302;  Alaska,  Codes,  pt.  4,  e.  81,  sees. 
772-800;  Arizona,  C.  C,  par.  1G04;  Idaho,  C.  C.  P.,  sec.  3999;  Montana, 


Petition.  837 

C.  C.  P.,  sec.  2324;  Nevada,  Comp.  Laws,  sec.  2793;  New  Mexico,  Comp. 
Laws,  sees.  1935,  2094;  North  Dakota,  Probate  Code,  sees.  C284,  628.') ; 
Oregon,  Codes  and  Statutes,  sec.  1105;  South  Dakota,  Probate  Code,  sees. 
34-38;  Washington,  Ballinger's  Codes,  sec.  6098;  Wyoming,  Eev.  Stata., 
sec.  4575. 


No.  1461. — Petition — Order — Will  Concealed,  to  Produce. 
[Title  of  Court  and  Estate.] 

The  executor  of  the  estate  of  /.  G.  F.,  deceased,  complains  to 
this  court  by  this  petition,  and  states : 

That  on  January  2Q,  iqo6,  petitioner  filed  in  this  court  a  doc- 
ument purporting  to  be  the  last  will  of  said  deceased.  That  there- 
after such  proceedings  were  had  that  your  petitioner  was  duly  ap- 
pointed executor  under  said  will,  and  he  is  now  the  qualified  and 
acting  executor  thereof.  That  since  his  said  appointment  and 
qualification  as  aforesaid  petitioner  has  been  informed  and  he  be- 
lieves that  the  will  aforesaid  was  not  the  last  will  of  said  deceased. 
That  the  last  will  of  said  deceased  was  executed  subsequent  to  the 
will  probated  as  aforesaid,  and  your  petitioner  is  informed  and 
believes  and  therefore  avers  that  the  last  will  of  said  deceased  is 
now  in  the  possession  of  one  L.  R.  L.,  a  resident  of  said  county. 
That  petitioner  has  demanded  said  will  of  said  L.,  but  he,  ad- 
mitting that  he  has  said  will  in  his  possession,  refuses  to  deliver 
it  to  petitioner,  or  to  file  it  in  this  or  any  other  court,  though 
by  petitioner  requested  so  to  do. 

^^'herefore,  petitioner  prays  for  an  order  citing  said  L.  before 
this  court  to  make  answer  under  oath  respecting  said  will,  or  [state 
the  facts  relating  to  any  other  cause  of  complaint  permissible 
under  the  statutes  referred  to  in  the  notes  in  this  form]. 

Verified. 

NOTE. — In  California,  if  any  person  interested  in  the  estate  com- 
plains to  the  superior  court,  on  oath,  that  a  person  is  snspected  to  have 
concealed,  embezzled,  smuggled,  conveyed  away,  or  disposed  of  any 
moneys  or  goods  of  the  decedent,  or  has  in  his  possession  or  knowledge 
any  deeds,  conv^^yanees,  bonds,  contracts,  or  other  writings  which  con- 
tain evidences  of.  or  tend  to  disclose  the  interest,  or  claim  of  the  de- 
cedent to  any  estate,  or  any  claim  or  demand,  or  any  lost  will,  the  said 
court  or  judge  may  cite  such  person  to  appear  before  such  court,  and 
may  examine  him  on  oath  upon  the  matter  of  such  complaint:  Cal.  C.  C. 
P.,  sec.  1459;  Alaska,  Codes,  pt.  ^4,  c.  82,  sec.  SIO;  Arizona.  C.  C,  par. 
1722;  Idaho,  C.  C.  P.,  sec.  4116;  Montana,  C.  C.  P.,  sec.  2571;  Nevada, 
Comp.  Laws»  sec.  2882;  New  Mexico,  Comp.  Laws,  sees.  1935,  2094;  North 
Dakota.  Probate  Code,  sec.  6581;  Oregon,  Codes  and  Statutes,  sec.  1148; 
South  Dakota.  Probate  Code.  sees.  149-1."2:  Utrih,  Tlov.  Rtnts.,  sec.  3927; 
Y.ashington,  Ballinger's  Codes,  sec.  6212;  Wyoming,  Rev.  Stats.,  sec 
4690. 


838  New  Book  of  Forms. 


No.  1462. — Petition  for  Letters — Foreign  WilL 
[Title  of  Court  and  Estate.] 

[The  same  as  in  a  petition  for  probate  of  a  domestic  will;  then 
continue:]  That  on  the  2d  day  of  May,  190^,  in  the  district  court 
of  the  county  of  Carson,  in  the  state  of  Nevada,  such  proceedings 
were  had  that  an  order  was  duly  made  admitting  said  will  to  pro- 
bate, and  appointing  A.  B.  executor  thereof;  and  such  proceed- 
ings were  thereafter  had  that  the  said  A.  B.  qualified  as  executor, 
and  he  is  now  the  executor  of  said  will,  and  his  appointment  has 
not  been  revoked. 

NOTE. — In  snch  cases  the  proceedings  as  to  notice,  etc.,  are  the  same 
as  is  provided  for  an  original  petition  for  the  probate  of  a  will:  Cal.  C.  C. 
P.,  sec.  1323. 

As  to  pleading  the  order  of  a  court,  see  Id.,  sec.  456;  Alaska,  Codes, 
pt.  4,  c.  80,  sees.  772-800;  Arizona,  C.  C,  par.  1602;  Idaho,  C.  C.  P.,  see. 
4015;  Montana,  C.  C.  P.,  see.  2351;  New  Mexico.  Comp.  Laws,  sees. 
1935,  2094;  North  Dakota,  Probate  Code,  sees.  6332,  6338,  6339;  South 
Dakota,  Probate  Code,  sees.  52-54;  Utah,  Eev.  Stats.,  see.  3807;  Wy- 
oming, Rev.  Stats.,  sec.  4583. 


No.  1463. — Petition  to  Revoke  the  Probate  of  a  WilL 
[Title  of  Court  and  Estate.] 

The  petition  of  A.  B.  respectfully  alleges  that  on  the  3d  day  of 
June,  ipoj,  an  order  of  the  court  was  made  admitting  to  probate 
a  writing  purporting  to  be  the  last  will  of  C.  D.,  deceased,  and 
at  the  same  time  the  court  made  an  order  appointing  B.  F.  exec- 
utor of  said  will  and  also  made  its  certificate  of  the  proof  and 
the  facts  found,  and  such  proceedings  were  then  had  that  the 
said  B.  F.  qualified  as  executor,  and  he  is  now  the  executor  of  said 
will. 

Your  petitioner  further  states  that  the  will  admitted  to  pro- 
bate as  aforesaid  was  not  the  last  will  of  said  deceased.  1  hat 
petitioner  has  in  his  possession  an  olographic  will  of  said  deceased 
made  by  him  after  he  signed  the  paper  admitted  to  probate  as 
aforesaid.  Wherefore  petitioner  prays  that  the  order  admitting 
to  probate  the  paper  dated  January 3,  ipoj,  as  the  last  will  of  said 
deceased  be  revoked. 

NOTE. — Under  the  circumstances  stated  in  the  above  form,  a  petition 
in  writing  may  be  filed  within  one  year  in  the  court  in  which  the 
will  was  probated,  containing  allegations  against  the  validity  of  the 
will  and  praying  that  the  probate  be  revoked.  The  same  action  may 
be  taken  if  it  is  shown  that  the  proofs  of  the  execution  of  the  will 
were  insufficient:  Cal.  C,  C.  P.,  see.  1327. 


Petition.  839 

Tt  is  thongTit  to  be  pood  practice,  -when  the  petitioner  is  sure  of  his 
"facts"  to  file  a  petition  for  the  probate  of  the  true  will  the  same 
as  if  no  will  had  been  admitted  to  probate,  and  so  manage  the  affair 
that  the  petition  to  revoke  and  the  petition  to  probate  will  be  hoard, 
the  first  by  a  jury  and  the  second  by  the  court  on  the  same  day: 
Alaska,  Codes,  pt.  4,  c.  80,  sees.  772-800;  Arizona,  C.  C,  par.  1622;  Idaho, 
C.  C.  P.,  sec.  4017;  Montana,  C.  C.  P.,  sees.  2.360-2366;  New  Mexico] 
Comp.  Laws,  sees.  19.35,  2894;  North  Dakota,  Probate  Code,  sees.  6362- 
6371;  Oregon,  Codes  and  Statutes,  sec.  1108;  South  Dakota,  Probate 
Code,  sees.  9.1-98;  Utah,  Rev.  Stats.,  sec.  3796;  Washinj^ton.  Ballinger's 
Codes,  sees.   6110,   6112;    Wyoming,   Eev.   Stats.,   sees.   4083,   4607. 


No.    1464. — Petition — Probate    of    Lost    WilL 
[Title  of  Court  and  Estate.] 

[Commence  the  same  as  in  Petition  for  Probate  of  a  Will  Pro- 
duced and  Filed.    Then  allege:] 

That  said  zinll  zvas  in  the  words  and  figures  foil  owing,  to  wit: 
[Set  out  will  in  full.]  That  said  will  zvas  in  the  possession  of  de- 
ceased unrevoked  at  the  time  of  his  death.  That  he  met  death  by 
burning  on  May  3,  1906,  at  the  city  of  B.,  and  said  will  was  acci- 
dentally burned  zvith  his  body. 

Wherefore  petitioner  prays  that  said  will  may  be  admitted  to 
probate  as  the  last  will  of  said  deceased. 

NOTE.— Tn  California  a  lost  or  destroyed  will  may  be  established  by 
proof,  notice  to  all  persons  interested  being  first  given  as  prescribed  in 
regard  to  proofs  of  wills  in  other  cases.  All  the  testimony  must  be 
reduced  to  writing,  and  signed  by  the  witnesses:  Cal.  C.  C.  P.,  sec.  1338; 
Alaska,  Codes,  pt.  4,  c.  80,  sees.  772-800;  Arizona,  C.  C,  par.  1629; 
Idaho,  C.  C.  P.,  sec.  4024;  Montana,  C.  C.  P.,  sec.  2370;  Nevada,  Comp. 
Laws,  sec.  2089;  New  Mexico,  Comp.  Laws,  sees.  1935.  2094;  North  Da- 
Kota,  Probate  Code,  sec.  6298:  South  Dakota.  Probate  Code.  sees.  62-65; 
TTt.ih,  Rev.  Stats.,  sec.  3809:  Washington,  Ballinger's  Codes,  see.  6117; 
"Wyoming,  Rev.  Stats.,  sec.   4594. 


No.      1465. — Petition — Letters — Nuncupative    Will,     Probate 

for. 

[Title  of  Court  and  Estate.] 

[Commence  as  in  Petition  for  Probate  of  a  Will,  executed  in 
the  presence  of  subscribing  zvitnesscs,  and  follozv  dozvn  to  the  par- 
agraph commencing  as  follozvs:] 

That  the  total  estate  of  deceased  does  not  exceed  in  value  the 
sum  of  one  thousand  dollars.  That  the  circumstances  surround- 
ing the  death  of  /.  B.  were  as  follows:  Deceased  and  H.  J.  and 
W.  D.  zvtre  on  May  12,  1903,  passengers  on  the  schooner  C.  front 
San  Francisco,  California,  to  A.  M.  On  the  passage  a  storm 
arose,  and  the  said  schooner  fell  on  her  beam  ends,  and,  when  tM^ 


840  New  Book  of  Forms. 

vessel  fell  over,  deceased  was  thrown  against  the  mainmast  with 
such  force  that  his  right  arm  was  broken,  so  that  he  was  unable 
to  szanm,  or  resist  death  by  drozvning,  and  deceased  became, 
thereby,  in  great  fear  and  peril  of  death  on  account  of  the  injury 
aforesaid.  While  in  said  peril  deceased  said  to  said  J.  and  D.  that 
he  then  and  there  greatly  feared  death,  and  he  believed  it  would 
soon  come  to  him,  if  not  to  others,  and  also  said  that  he  had  in  his 
ozvn  name  on  deposit  in  the  H.  Savings  Bank  m  San  Francisco, 
California,  $1,000,  and  in  case  of  his  death  it  was  his  wish 
that  said  $1,000  be  given  to  his  old  friend  and  attorney,  H.  I., 
of  San  Francisco,  California,  or  such  grandchildren  as  he, 
the  said  H.  I.,  might  discover  to  him,  deceased,  and  he,  the 
said  J.  B.  at  the  time  and  place  aforesaid  asked  the  said  H.  J. 
and  IV.  D.  to  bear  zvitness  that  the  words  so  spoken  as  aforesaid 
constituted  his  last  will.  Shortly  after  the  said  words  were  spoken 
a  wave  washed  said  J.  B.  into  the  ocean,  and  said  witnesses  saw 
him  sink  beneath  the  waves.  That  within  thirty  days  from  the 
death  of  said  J.  B.  his  testamentary  words,  as  aforesaid,  were  re- 
duced to  writing,  and  the  said  writing  is  hereto  attached  and  re- 
ferred to  and  made  part  thereof  and  marked  Exhibit  "A." 
[Conclude  as  in  Petition  for  Probate  of  Will] 

NOTE.— California,  C.  C.  P.,  sees.  1344-1346;  Alaska,  Codes,  pt.  4,  e. 
80,  sees.  772-800;  Arizona,  C.  C,  pars.  1634,  1635,  4220;  Idaho,  C.  C.  P., 
sees.  4028,  4029,  4036;  Montana,  C.  C.  P.,  sees.  1736,  1737,  2380,  2381, 
2382;  Nevada,  Comp.  Laws,  sees.  3076,  3077;  North  Dakota,  Probate 
Code,  sec.  6286;  Oregon,  Codes  and  Statutes,  sec.  5560;  South  Dakota, 
Probate  Code,  sees.  66-68;  Utah,  Rev.  Stats.,  sec.  3790;  Washington,  Bal- 
linger's  Codes,  sec.  4696;  Wyoming,  Rev.  Stats.,  sees.  4598,  4599,  4600. 


No.    1466. — Petition — Letters    of   Administration,    for, 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  of  the  City  and  County  of 
San  Francisco,  State  of  California: 

The  petition  of  M.  J.,  of  said  city  and  county  respectfully 
shows : 

That  T.  J.  died  on  or  about  the  seventeenth  day  of  May,  1906, 
in  the  city  and  county  of  San  Francisco,  state  of  California. 

That  said  deceased  at  the  time  oi  his  death  was  a  resident  of 
the  said  city  and  county  of  San  Francisco,  state  of  California. 

That  said  deceased  left  estate  in  the  said  city  and  county  of 
San  Francisco,  state  of  California,  consisting  of  real  and  personal 
property. 

That  the  value  and  character  of  said  property,  so  far  as  known 
to  your  applicant,  are  as  follows,  to  wit:  [Here  give  a  description, 
condition,  and  value  of  the  property.] 


Petition,  841 

All  of  the  above  property  was  acquired  by  said  deceased  after 
his  marriage  to  your  petitioner,  and  is  therefore  common  prop- 
erty. 

That  the  estate  and  effects  for  or  in  respect  of  which  letters  of 
administration  are  hereby  appHed  for  do  not  exceed  the  value 
of  fourteen  thousand  one  hundred  and  thirty-seven  dollars. 

That  the  next  of  kin  of  said  deceased,  and  whom  your  ])eti- 
tioner  is  advised  and  believes,  and  therefore  alleges  to  be  the  heirs 
at  law  of  said  deceased,  are  your  petitioner,  aged  forty  years, 
residing  at  said  city  and  county  aforesaid,  and  J.  J.,  aged  tzvenfy- 
three  years,  rciding  at  the  city  of  Sacramento;  W.  J.,  aged  eigh- 
teen years;  C.  J.,  aged  sixteen  years,  and  E.  J.,  aged  fourteen 
years,  residing  with  your  petitioner  at  said  city  and  county  of 
San  Francisco,  the  children  of  said  deceased  and  your  petitioner. 

That  due  search  and  inquiry  has  been  made  to  ascertain  if 
said  deceased  left  any  will  and  testament,  but  none  has  been 
found,  and  according  to  the  best  knowledge,  information  and 
belief,  of  your  petitioner,  said  deceased  died  intestate. 

That  youi  petitioner  is  the  zvidozu  of  said  deceased,  and  there- 
fore, as  your  petitioner  is  advised  and  believes,  is  entitled  to  let- 
ters of  administration  of  said  estate. 

Wherefore,  your  petitioner  prays  that  a  day  may  be  appointed 
for  hearing  this  application ;  that  due  notice  thereof  be  given  by 
the  clerk  of  said  court  by  posting  notices  according  to  law,  and 
that  upon  said  hearing,  and  the  proofs  to  be  adduced,  letters  of 
administration  of  said  estate  may  be  issued  to  your  petitioner. 

And  your  petitioner  prays. 

NOTE. — In  California  the  petition  must  De  in  writing,  sign>'d  by  the 
applicant  or  his  counsel,  and  filed  with  the  clerk,  stating  the  jurisdic- 
tional facts,  and,  when  known  to  the  applicant,  he  must  state  the  names, 
ages,  and  residence  of  the  heirs,  and  the  value  and  characti  r  of  the 
property.  If  the  jurisdictional  facts  existed,  but  are  not  fully  set 
forth,  and  are  afterward  proved  in  the  course  of  administration,  the  de- 
cree or  order  of  administration  and  subsequent  proceedings  are  not  void 
on  account  of  such  want  of  jurisdictional  averments:  Cal.  C.  C.  P.,  sec. 
1.371;  Alaska,  Codes,  pt.  4,  c.'SO,  sees.  772-800;  Arizona,  C.  C,  par.  1653; 
Idaho,  C.  C.  P.,  4047;  Montana,  C.  C.  P.,  sec.  2440;  Nevada.  Comp. 
Laws,  sec.  2S28;  New  Mexico,  Comp.  Laws,  sees.  19.3.3,  2094;  North  Da- 
kota, Probate  Code,  sec.  6317;  South  Dakota,  C.  C,  sees.  86-94;  Utah, 
Rev.  S<-ats.,  sec.  3817;  Washirrrton,  Ballingcr's  Codes,  sees.  6142,  6143; 
Wyoming,  Eev.  Stats.,  sec.  4646. 


No.  1467. — Petition  to  Revoke  Letters  of  Administration  and 
to  Grant  Them  to  a  Person  Claiming  Under  Prior  Right. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  of  the  County  of  Alameda: 
Your  petitioner  states  the  facts  to  be  that  on  the  jci  day  of 


842  New  Book  of  Forms. 

May,  1905,  the  said  court  issued  letters  of  administration  upon 
the  estate  of  said  E.  F.,  deceased,  to  C.  D.,  the  public  adminis- 
trator of  the  county  of  Alameda,  state  of  California.  That  on 
the  same  day  letters  of  administration  were  issued  to  the  said 
C.  D.  and  he  is  now  the  qualified  administrator  of  said  estate. 
That  the  said  C.  D.  was  not  entitled  to  said  administration  ex- 
cept by  virtue  of  his  office  of  public  administrator. 

That  your  petitioner  is  the  sursaving  wife  of  said  deceased  and 
is  qualified  to  serve  as  administratrix  of  said  estate. 

Wherefore  this  petitioner  prays  that  the  letters  issued  to  the 
said  C.  L).,  be  revoked  and  that  letters  of  administration  be  is- 
sued to  petitioner. 

NOTE. — Such  revocation  may  be  had  upon  petition,  and  letters  Tvill  be 
issued  to  the  person  entitled,  or  to  any  competent  person  if  such  re- 
quest is  made  in  writing:  Cal.  C.  C.  P.,  sec.  1383. 

If  letters  have  been  granted  to  a  child,  father,  or  brother,  or  sister  of 
the  intestate,  the  surviving  husband  or  wife  may  assert  his  or  her  prior 
right  and  cause  such  letters  to  be  revoked.  Other  relatives  entitled  may 
do  the  same  in  the  order  of  priority;  Id.,  sec.  1386;  Arizona,  C.  C,  par. 
1662;  Idaho,  C  C.  P.,  sec.  4056;  Montana,  C.  C.  P.,  sec.  4260;  Nevada, 
Comp.  Laws,  sec.  2835;  New  Mexico,  Comp.  Laws,  sees.  1935,  2094;  North 
Dakota,  Probate  Code,  sec.  6362;  South  Dakota,  Probate  Code,  sees. 
95-98;  Wyoming,  Bev.  Stats.,  see.  4653. 


No.   1468. — Petition  by  Interested  Party  that  Administrator 
Give   New  Bond — Sureties  Removed  from   State. 

[Title  of  Court  and  Estate.] 

The  petition  of  A.  B.  represents  to  the  court  that  he  is  an  heir 
at  law  of  E.  F.,  deceased.  That  all  the  sureties  of  C.  D.,  the 
administrator  of  said  estate,  have  removed  from  the  state  of  Cali- 
fornia and  are  now  residents  of  the  city  of  Reno,  state  of  Nevada. 

Wherefore  petitioner  prays  the  court  to  cite  the  said  adminis- 
trator to  appear  and  show  cause  why  he  should  not  give  further 
security. 

NOTE. — When  an  administrator  or  executor  removes  from  the  state, 
or  has  become  or  is  becoming  insolvent,  or  is  about  to  remove  from  the 
state,  or  if  from  any  other  cause  his  bond  has  become  insufficient,  an 
interested  person  mav  petition  the  court  and  ask  for  further  security: 
Cal.  C.  C.  P.,  sec.  1397. 

A  citation  must  issue,  etc.  and  be  served  personally  unless  ht  has  ab- 
sconded: Id.,  sec.  1398. 

If  he  neglects  to  give  further  security  when  ordered,  his  letters  may 
be  revoked:   Id.,  sees.   1400,  1405. 

Or  he  mav  be  suspended:  Id.,  sec.  1401;  Alaska,  Codes,  pt.  4,  c.  81, 
8CC8.  785-786;  Arizona,  C.  C.  par.  1676:  Idaho,  C.  C.  P.,  sec.  4071; 
Montana,  C.  C.  P.,  sec.  2480;  NeVnda,  Comp.  Laws,  sec.  2846;  New  Mex- 
ico, Comp.  Laws,   sees.   1935,  2094;   North  Dakota,  Probate  Code,  sees. 


Petition.  843 

B35S-fiS61;  Oropon,  Codoft  and  Stntutrs,  s(-c.  1123;  Ronth  Dakota,  Pro- 
bate Todp,  sooH.  99.  109.  109.  110,  113,  llS;  Washington,  Ballinger's  Codes, 
sec  6157;  Wyoming,  fiev.  Stata,,  sec  4670. 


No.  1469. — Petition  to  Require  Administrator  to  Give  Further 

Security. 

[Title  of  Court  and  Estate.] 

The  petition  of  A.  B.  represents  to  the  court  that  C.  D.,  the 
administrator  of  the  estate  of  the  said  E.  F.,  deceased,  is  wasting 
the  property  of  the  said  estate  and  the  said  waste  consists  in  his 
doing-  and  causins^  to  be  done  the  following  things  in  his  name 
as  said  administrator — that  is  to  say: 

First. — The  inventory  and  appraisement  describes  a  promissory 
note  by  G.  H.  in  favor  of  said  deceased  for  $10,000,  and  interest, 
which  note  is  valued  at  nothing. 

Second. — The  said  inventory  describes  a  promissory  note  and 
mortgage  in  favor  of  said  deceased  executed  by  /.  /.  for  $3,500. 
It  is  valued  in  said  inventory  at  nothing  because  it  is  a  third  mort- 
gage, and  the  property  mortgaged  is  not  of  sufficient  value  to 
satisfy  the  first  mortgage,  and  the  administrator  has  commenced 
an  action  to  obtain  judgment  in  said  promissory  note  and  another 
to  foreclose  said  mortgage,  and  he  has  employed  his  son  as  his 
attorney  to  prosecute  said  actions ;  and  has  paid  another  son,  who 
is  a  searcher  of  records,  $300  of  money  belonging  to  said  estate  to 
make  a  long  and  useless  abstract  of  the  property  described  in  said 
mortgage,  and  has  employed  a  son  in  law,  on  behalf  of  said  es- 
tate, to  survey  the  land  described  in  the  mortgage,  all  of  which 
expenditure  is  not  now,  nor  never  will  be,  of  any  value  to  said 
estate.  That  the  bond  of  said  administrator  is  insuflficient  secur- 
ity for  his  wrongful  acts  as  aforesaid. 

Wherefore  petitioner  prays  that  the  said  administrator  be  re- 
quired to  give  further  security  and  that  his  powers  be  suspended 
until  the  matters  herein  alleged  can  be  heard  and  determined. 

NOTE. — When  an  executor  or  administrator  is  wasting  the  property 
of  the  estate  and  the  court  is  petitioned  to  order  him  to  give  further 
eocnrity,  or  if  an  executor  is  not  required  by  will  to  give  bond,  if  a 
petition  "under  oath"  is  presented  alleging  such  waste  the  court  may 
suspend  the  officer  until  the  matter  can  be  heard  and  determined:  Cal.  C. 
C.  P.,  sec.  1401. 

In  nil  such  matters  the  judge  may  order  the  matter  investigated  upon 
his  own  motion:  Cal.  C.  C.  P.,  sec.  1402;  Alaska,  Codes,  pt.  4,  c.  81,  sees. 
785.  786;  Arizona,  C.  C,  par.  1680;  Idaho,  C.  C.  P.,  sec.  4075;  Montana, 
C.  C.  P.,  sec.  2484;  Nevada,  Comn.  Laws,  sec.  2850;  New  Mexico,  Comp. 
Laws,  sees.  10.35,  2094;  North  Dnkota,  Probnte  Code.  sees.  6358,  6361; 
South  Dakota,  Probate  Code,  sees.  109-117;  Wyoming,  Rev.  Stats.,  sec 
6474. 


844  New  Book  of  Forms. 


No.   1470. — Petition — Order — New  Bond,  for. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  in  and  for  the  County  of 
N(rc'ada: 

The  petition  of  /.  S.  shows  that  he  is  a  son  of  IV.  S.,  said  de- 
ceased. That  since  the  administrator  of  said  estate  filed  his  bond 
given  on  qualifying,  H.  W.  has  become,  and  is  now,  insolvent. 

[Or  said  H.  W.  has  removed  from  the  state  of  California  and 
nozv  resides  in  the  state  of  Nevada.]  [Or  said  H.  W.  has  sent 
his  zvife  and  family  out  of  the  state  of  California;  has  sold  all 
of  his  property  in  California  and  is  about  to  leave  said  state  with- 
out intention  of  returning.] 

Wherefore  petitioner  prays  that  said  administrator  may  be  or- 
dered to  give  further  security  in  the  form  of  a  new  bond. 

Verified. 

NOTE. — In  Ca]ifomia  a  person  interested  in  an  estate  may,  by  veri- 
fier petition,  represent  to  the  superior  court,  or  a  judge  thereof,  that 
the  sureties  of  an  executor  or  administrator  thereof  have  become,  or  are 
becoming,  insolvent,  or  that  they  have  removed,  or  are  about  to  re- 
move, from  the  state,  or  that  from  any  other  cause  the  bond  is  in- 
sufficient, and  ask  that  further  security  be  required:  Cal.  C.  C.  P.,  see. 
1397;  Alaska,  Codes,  pt.  4,  c.  81,  sees.  785,  786;  Arizona,  C.  C,  par.  1676; 
Idaho,  C.  C.  P.,  see.  4071;  Montana,  C.  C.  P.,  sec.  2480;  Nevada,  Comp. 
Laws,  see.  2846;  New  Mexico,  Comp.  Laws,  sees.  19.35,  2094;  North  Da- 
kota, Probate  Code.  sees.  6358-6361;  Oregon,  Codes  and  Stahifps,  sec. 
1123;  South  Dnkota.  Probate  Code,  sees.  109-117;  Washington,  Ballinger'a 
Codes,  sec.  6157;   Wyoming,  Eev.  Stats.,    sec.  4670. 


No.  1 47 1. — Petition  of  Surety  to  be  Released  from  Bond  of 

Administrator. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  for  the  County  of  Contra 
Costa,  California: 

The  petition  of  ^.  B.  respectfully  states  that  he  is  a  surety  on 
the  bond  of  C.  D.,  the  administrator  of  the  estate  of  E.  P.,  de- 
ceased, and  that  he  desires  to  be  released  from  responsibility  on 
account  of  the  future  act  of  said  administrator.  Wherefore  he 
petitions  the  court  to  issue  a  citation  to  said  administrator  to 
appear  before  said  court,  and  to  give  other  security. 

XOTR. — California,  C.  C.  P.,  see.  1403.  When  the  other  security  is 
given  the  court  mu=;t  make  an  ordrr  thnt  the  surety  that  applied  for 
relief  shall  not  be  liable  for  any  subsequent  act,  default,  or  misconduct 


Petition,  845 

of  the  executor  or  administrator:  Id.,  sec.  1404.  The  jndge  of  the 
court  must  issue  the  citation  upon  application:  Id.,  sec.  14u.'i;  but  if 
be  rtlusi'S  to  approve  of  the  "other  security"  then  there  does  not  ap- 
pear to  be  any  relief  for  the  petitioner,  because  the  other  security  must 
be  satisfactory:  Arizona,  C.  C,  par.  1683;  Idaho,  C,  C,  P.,  sec."  4078; 
Montana,  C.  C.  P.,  sec.  2487;  Nevada,  Comp.  Laws,  sec,  28.'>3;  New  Mex- 
ico, Comp.  Laws,  sec^.  19,'^.5,  2094;  North  Dakota,  Probate  Code,  sees. 
G3.58,  6.^0l;  Oregon,  Codes  and  Statutes,  sec.  1124;  South  Dakota,  Probate 
Code,  sec.  ll.l;  Utah,  Rev.  Stats.,  sec.  3835;  Washington,  Ballinger's 
Codes,  sec.  6145;  Wyoming,  Rev,  Stats.,  sec,  4677. 


No,  1472. — Petition  Surety,  of — Release  from  Bond. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  of  the  County  of  Sierra: 
Your  petitioner  is  a  surety  on  the  bond  jf  the  administrator 
of  said  estate,  and  he  desires  to  be  released  from  further  responsi- 
bility as  such  surety. 

Wherefore  he  prays  for  an  order  requiring  the  said  administra- 
tor to  appear  in  said  court  and  show  cause  why  petitioner  should 
not  be  released  as  herein  prayed  for,  and  to  show  cause  why  he 
should  not  give  other  security. 

NOTE. — In  California,  when  a  surety  desires  to  be  released  from  re- 
sponsibility on  account  of  future  acts  he  may  make  application  to  the 
superior  coiirt  for  relief.  The  court  must  cause  a  citation  to  the  execu- 
tor or  administrator  to  be  issued,  and  served  personally,  requiring  him 
to  appear  at  a  time  and'  place  to  bo  therein  specified,  and  to  give  other 
security:  Cal.  C.  C.  P.,  sec.  1403;  Arizona,  C,  C,  par.  1682;  Idaho,  C.  C, 
P.,  sec.  4077;  Montana,  C.  C.  P.,  sec.  2486;  Nevada,  Comp.  Laws,  sec 
2852;  New  Mexico,  Comp.  Laws,  sees.  1935,  2094;  North  Dakota,  Probate 
Code,  sees.  6358-6361;  South  Dikota,  Probnto  Code,  sec  115j  Utah,  Eev. 
Stats.,  sec,  3834;  Wyoming,  Rev.  Stats.,  sec.  4676, 


No.   1473, — Petition — Appointment  of  Special  Administrator, 

for. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Judge  of  the  Superior  Court  in  and  for 
the  County  of  Sacramento: 

Your  petitioner  states  that  he  is  qualified  to  serve  as  adminis- 
trator of  said  estate,  he  being  [the  husband,  or  wife,  or  brotJier  or 
sister,  or  one  of  the  others  enumerated  in  section  1365,  Code 
of  Ciznl  Procedure].  That  a  petition  is  on  file  in  said  court 
praying  for  letters  of  administration  on  said  estate  on  behalf  of 
this  petition. 

That  there  has  been  delay  in  the  granting  of  letters  of  adminis- 
tration upon  said  estate,  and  there  will  probably  be  a  longer  de- 


846  Ne;w  Book  of  Forms. 

lay  before  letters  are  granted,  and  it  is  necessary  that  some  one 
should  be  authorized  to  collect  and  preserve  the  property  of  said 
estate. 

Wherefore  your  petitioner  prays  that  he  be  appointed  special 
administrator  of  said  estate. 

NOTE.— California,  C.  C.  P.,  sees.  1411-1416;  Alaska,  Codes,  pt.  4,  c. 
81,  sec.  780;  Arizona,  C.  C,  par.  1687;  Idaho,  C.  C.  P.,  sec.  4081;  Mon- 
tana, C.  C.  P.,  sec.  2500;  Nevada,  Comp.  Laws,  sees.  2855,  2861,  .3027; 
New  Mexico,  Comp.  Laws,  sees.  1935,  2094;  North  Dakota,  Probate  Code, 
se..  6325;  Oregon,  Codes  and  Statutes,  sec.  1181;  South  Dakota,  Probate 
Code.  sees.  119-125;  Utah,  Rev.  Stats.,  sec.  3821:  Washington,  Ballinger's 
Codes,  see.  6172;  Wyoming,  Eev.  Stats.,  sec.  4639. 


No.    1474. — Petition   to    Revoke    Letters,    and    Appoint   Peti- 
tioner— Executor  Removed  from  State. 

[Title  of  Court  and  Estate.] 

Now  comes  A.  B.  and  petitioning  this  court  to  revoke  the  ap- 
pointment of  C.  D.  as  executor  of  the  will  of  E.  F.,  deceased,  and 
appoint  petitioner  administrator  with  the  will  annexed  of  the  es- 
tate of  said  deceased,  for  reason  why  said  appointment  ought  to 
be  made  states  the  facts  to  be  as  follows: 

On  the  ^d  day  of  June,  ipoj,  C.  D.  filed  in  this  court  his  peti- 
tion to  be  appointed  executor  of  the  will  of  E.  F.,  deceased.  That 
said  petition  stated  all  the  facts,  if  true,  necessary  to  give  this 
court  jurisdiction  to  appoint  said  C.  D.  executor  of  said  will. 
That  thereafter  such  proceedings  were  had  that  this  court,  on  the 
i^th  day  of  July,  IQOJ,  appointed  said  C.  D.  executor  of  said  will, 
and  he  thereupon  qualified,  and  ever  since  has  been  and  is  now  the 
executor  of  said  will,  and  said  letters  have  never  been  revoked. 
That  the  papers  and  records  relating  to  the  said  appointment  are 
the  records  in  this  court  of  said  estate,  and  they  are  in  this  peti- 
tion referred  to  and  made  part  hereof. 

That  on  July  10,  1^04,  the  said  C.  D.,  as  executor,  filed  his 
inventory  and  appraisement  and  took  possession  of  the  property 
of  said  estate.  That  on  August  10,  ipoj,  said  C.  D.  removed  from 
the  state  of  California  and  has  not  since  returned  to  the  state  of 
California  and  has  permanently  removed  therefrom,  and  he  is 
now  a  resident  of  Rochester,  Monroe  County,  state  of  Nezv  York. 
That  petitioner  is  a  resident  of  the  state  of  California.  That 
notice  to  the  creditors  of  said  deceased  has  never  been  published, 
and  petitioner  is  a  creditor  of  said  deceased,  holding  deceased's 
promissory  note  dated  March  5,  1902,  for  $3,000  due  one  year 
after  its  date  of  which  no  part  has  been  paid. 

Wherefore  petitioner  prays  that  a  citation  issue  to  said  C.  D. 
to  show  cause  why  his  said  letters  should  not  be  revoked,  and  peti- 


Petition.  847 


tioner  also  prays  that  upon  revocation,  letters  of  administration 
with  the  will  annexed  be  issued  to  petitioner. 
Verified. 

NOTE.— Oalifornia,  C.  C.  P.,  sees.  1436-1440;  Alaska,  Codes,  pt.  4,  c 
81,  sec.  784;  Arizona,  C.  C,  par.  1705;  Idaho,  C.  C.  P.,  sec.  4099;  Mon- 
tana, C.  C.  P.,  sec.  2540;  Nevada,  Comp.  Laws,  sec.  3026;  New  Mexico, 
Comp.  Laws,  sees.  1935,  2094;  North  Dakota,  Probate  Code,  sees.  6362, 
6371;  South  Dakota.  Probate  Code,  sees.  133,  134;  Washington,  Ballin- 
ger's  Codes,  sec.  6167;  Wyoming,  Bev.  Stats.,  sec.  4622. 


No.  1475. — Petition  to  Revoke  Letters  and  Appoint  Petitioner 
— Executor   is    Nonresident   and   was    When   Appointed, 

[Title  of  Court  and  Estate.] 

[The  same  as  in  No.  1474,  except  omit  the  following:  "That  on 
August  10,  ipo^,  said  C.  D.  removed  from  the  state  of  Califor- 
nia and  has  not  since  returned,  and  has  permanently  removed 
therefrom,  and  he  is  now  a  resident  of  Rochester,  Monroe  County, 
state  of  New  York";  and  insert:  "Tliat  said  C.  D.  was  never 
a  resident  of  the  state  of  California,  hut  was  at  the  time  of  his 
appointment  as  aforesaid,  and  is  nozv,  a  resident  of  Rochester, 
Monroe  County,  state  of  New  York."] 

The  petitioner  is,   etc. 

NOTE.— California,  C.  C.  P.,  sec.  1349. 

The  phrase  "permanently  removed  from  the  state"  as  a  gronnd  for 
revoking  letters  of  an  executor  applies  to  a  resident  executor  perma- 
nently removed  from  the  state,  and  it  also  applies  to  a  nonresident 
executor  who  has  come  to  the  state  to  receive  his  appointment,  and  then 
leaves  the  state  and  permanently  remains  away:  Estate  of  Kelley,  122 
Cal.  379;  Alaska,  Codes,  pt.  4,  c.  81,  see.'  784;  Arizona,  C.  C,  par.  1707; 
Idaho,  C.  C.  P.,  4101;  Montana,  C.  C.  P.,  sec.  3542;  Nevada.  Comp.  Laws, 
sec.  3029;  New  Mexico.  Comp.  Laws,  sees.  1935-2094;  North  Dakota, 
Probnto  Code,  sees.  6362,  6371;  South  Dakota,  Probnte  Code,  sees.  133,' 
134;  Washington,  Ballinger's  Codes,  sec.  6169;  Wyoming,  Eev.  Stats.,  sec! 
4624. 


No.  1A76. — Petition  and  Comnlaint  Asking^  for  a  Citation  to 
Shovi'  Cause  Why  a  Bank  Should  not  Pay  a  Deposit  to 
Administrator  of  Depositor. 

[Title  of  Court  and  Estate.] 
The  petition  of  IV.  A.   respectfully  shows: 

I. 
That  on  the  ph  day  of  March,  1002,  your  petitioner,  W.  A., 
was   appointed   administrator   of   the   above-named    estate;   that 


84S  New  Book  of  Forms. 

thereafter,  and  on  the  5//;  day  of  May,  1902,  he  qualified  as  such 
administrator,  ever  since  has  been  and  now  is  the  duly  appointed, 
qualihed  and  acting  administrator  of  said  estate. 

11. 
That  some  years  prior  to  the  death  of  decedent,  the  exact  date 
being  to  your  petitioner  unknown,  said  deceased  deposited  with 
the  C.  S.  and  L.  Society,  a  corporation,  at  its  principal  place  of 
business  in  said  county,  the  sum  of  twelve  hundred  and  fifty-one 
and  46-100  dollars  ($12^1.46),  gold  coin  of  the  United  States, 
which  sum  said  corporation  then  and  there  promised  and  agreed 
to  repay  to  said  deceased,  with  the  interest  or  dividends  accrued 
thereon,  upon  demand. 

III. 

That  your  petitioner  shortly  after  the  issuance  of  letters  of  ad- 
ministration to  him  upon  the  estate  of  said  A.  A.,  deceased,  as  such 
administrator  demanded  of  said  C.  S.  and  L.  Society,  at  its  office 
in  said  city  and  county  of  San  Francisco,  state  aforesaid,  the  pay- 
ment to  him,  as  such  administrator,  of  said  sum  of  $12^1.46,  but 
said  corporation  .hen  and  there  refused,  ever  since  has  refused, 
and  now  refuses  to  pay  to  said  administrator  said  sum  or  any  part 
thereof. 

IV. 

That  said  corporation  did  not  pay  said  sum,  or  any  part  thereof, 
to  said  A.  A.,  during  her  lifetime,  or  to  anyone  else,  nor  has  it 
paid  said  sum,  or  any  part  thereof,  to  said  administrator,  though 
often  requested  so  to  do,  and  said  sum  and  the  whole  thereof  is 
long  past  due,  owing  and  unpaid  to  your  petitioner,  as  adminis- 
trator of  the  said  estate. 

V. 
That  the  aforesaid  refusal  of  the  corporation  to  pay  said  de- 
posit to  said  administrator  is  based  upon  the  pretended  noniden- 
tity  of  the  said  deceased,  with  the  depositor  of  the  aforesaid  sum 
of  money,  but  that  the  said  corporation,  according  to  the  informa- 
tion and  belief  of  this  petitioner,  has  certain  books  and  registers, 
to  wit,  its  regular  books  containing  entries  of  the  names,  signa- 
tures, birthplaces,  parents'  names  and  other  or  similar  marks 
of  identification  of  its  depositors,  tending  to  disclose  the  identity 
of  said  depositor  with  the  said  deceased ;  and  that  the  said  cor- 
poration and  the  officers  thereof  have  hitherto  refused,  and  still 
refuse,  leave  to  this  petitioner  as  the  administrator  of  said  es- 
tate to  examine  or  inspect  said  books  and  registers,  or  the  respec- 
tive entries  referring  to  said  deceased's  estate,  for  the  purpose  of 
establishing  said  identity  and  the  fact  that  the  money  deposited 
by  said  deceased  in  said  savings  bank  is  the  property  of  the  estate 
of  said  deceased. 


Petition.  849 

VI. 

Thai  an  application  for  an  order  requiring  the  said  corporation 
to  pay  the  above-mentioned  deposit,  or  any  sum  due  on  account 
thereof,  to  this  petitioner  as  administrator  of  the  estate  of  said 
A.  A.,  deceased,  zvas  heretofore  presented  to  the  court,  but  was  de- 
nied on  the  ground  that  the  identity  of  said  deceased  zvith  said 
depositor  had  not  been  sufUciently  established.  That  since  then 
certain  documentary  evidence,  not  previously  obtainable ,  relating 
to  the  date  and  place  of  the  birth  of  said  deceased  and  to  the 
maiden  name  of  her  mother,  has  been  received  by  this  petitioner, 
whereby,  as  petitioner  is  informed  and  believes,  in  connection  with 
the  said  entries  in  said  bank-books  and  registers,  the  said  identity 
can  be  clearly  shown. 

Wherefore  your  petitioner  prays  that  a  citation  issue  herein  to 
said  C.  S.  and  L.  Society  requiring  it  to  appear  therein  at  a  time 
and  place  to  be  appointed  by  this  court,  then  and  there  to  show 
cause  why  an  order  of  this  court  should  not  be  made  and  entered 
herein,  directing  it  to  pay  to  said  W.  A.,  as  administrator  of  the 
estate  of  A.  A.,  deceased,  said  sum  of  $12^1.46,  or  such  other  sum 
as  may  be  found  to  be  due,  owing  and  unpaid  by  said  corporation 
to  said  W.  A.,  as  said  administrator;  and  also  requiring  said  cor- 
poration and  the  president,  secretary,  cashier  and  treasurer  there- 
of, or  either  of  said  or  any  officers  having  control  of  the  books  and 
registers  of  said  bank  mentioned  in  this  petition,  to  appear  be- 
fore the  above-entitled  court  with  such  of  the  aforesaid  books  and 
registers  as  contain  entries  referring  to  said  depositor,  A.  A.,  and 
ihen  and  there  to  be  examined  on  oath  upon  the  matter  of  this 
l>etition. 

NOTE. — Undpr  the  law  of  March  26,  1905,  banks  and  others  receiv- 
ing deposits  must  publish  the  name,  etc.,  of  all  depositors  who  have  made 
an  addition  to  their  deposit  or  drawn  any  part  thereof  within  ten  years: 
Stats.  1905,  p.  77.  In  such  cases  proceedings  are  commenced  nnder  the 
provision  of  Code  of  Civil  Procedure,  sections  1458-1461;  Arizona.  C.  C, 
par.  1721 ;  Idaho,  C.  C.  P.,  sec.  4115;  Montana,  C.  C.  P.,  sec.  2576;  Nevada, 
romp.  Laws,  sec.  2,SS1;  New  Mexico,  Comp.  Laws,  sees.  19.35-2094; 
North  T>ril<ota.  Probate  Code,  sec.  6581;  Oregon.  Codes  and  Statutes,  see. 
1152;  South  Dnkota.  Probate  Code.  sees.  140-152;  Utah.  Rev.  Stats.,  sec. 
il926;  Washington,  Ballinger's  Codes,  sec.  6211;  Wyoming,  Rev.  Stats., 
pec.  46S9. 

Under  Code  of  Civil  Procedure,  1459,  a  person  having  in  his  po»- 
^ession  books  or  papers  containing  evidence  tending  to  show  the  title 
or  interest  of  decedent  to  property  may  be  required  to  produce  such 
books  or  iiaju-rs  and  be  examined  concerning  them:  Ivevv  v.  Superior 
'■Viurt.  105' Cnl.  600,  38  Pac.  965,  29  L.  R.  A.  811.  But  that  is  the  limit 
of  the  power  of  the  court.  If  it  appears  that  the  property  in  question, 
is  only  a  debt  due  by  the  respondent  to  the  estate,  or,  if  specific  prop- 
erty, that  its  ownership  or  right  of  possession,  by  lien,  or  in  trust,  is 
claimed  by  respondent,  the  validity  of  that  claim  can  be  determined 
onlv  in  proper  action  at  law  or  in  equitv  bv  or  against  the  respondent: 
Ex"  parte  Casey,  71  Cal.  269,  12  Pac.  118;  Ex  parte  Hollis,  59  Cal.  405, 
New  Forms — 54 


850  New  Book  oi^  Forms. 

412;  S.  M.  Co.  V.  Snperior  Court,  123  Cal.  290,  55  Pac.  9S5;  Tom!?ky  v, 
Superior  Court,  131  Cal.  620,  63  Pac.  1020;  Buckley  v.  Superior  Court, 
102  Cal.  6,  41  Am.  St.  Rep.  135,  36  Pac.  360;  Havdenfeldt  v.  Jacobs, 
107  Cal.  373,  378,  40  Pac.  492;  CurUs  v.  Schell,  129  CaL  208,  221,  79  Am. 
St.  Rep.  107,  61  Pac.  951. 


No.  1477. — Petition — Provision  for  Support  of  Family. 

[Title  of  Court  and  Estate.] 

To  the  Honorable  Superior  Court  of  the  City  and  County  of  San 
Francisco,  State  of  California: 

The  petition  of  M.  T.,  the  administratrix  of  the  estate  of  J.  T., 
deceased,  respectfidly  shows : 

That  said  /.  T.  died  on  the  seventeenth  day  of  May,  ipoj,  leav- 
ing a  tvidoiv,  M.  T.,  and  three  minor  children. 

That  letters  of  administration  of  the  estate  of  said  deceased 
have  been  granted  to  your  petitioner,  and  that  no  inventory  has 
yet  been  returned. 

That  said  M.  T.  is  without  estate  of  her  own,  and  wholly  de- 
pendent upon  said  estate  for  maintenance ;  that  said  estate  is 
amply  able  to  provide  an  allowance  to  said  M.  T.  for  her  support, 
to  the  extent  of  one  hundred  dollars  per  month,  gold  coin  of  the 
United  States,  which  is  a  reasonable  amount  for  that  purpose, 
according  to  her  circumstances  and  accustomed  mode  of  life. 

Wherefore  your  petitioner  prays  that  an  allowance  out  of  said 
estate,  to  said  amount  of  one  hundred  dollars  per  month,  gold 
coin  of  the  United  States,  be  made  by  your  honor  for  the  support 
of  the  family  of  said  deceased  until  the  return  of  said  inventory. 

And  your  petitioner  will  ever  pray. 

NOTE.— California,  C.  C.  P.,  sees.  1464,  1465;  Alaska,  Codes,  pt.  4, 
c.  83,  sees.  815-819;  Arizona,  C.  C,  par.  1725;  Idaho,  C.  C.  P.,  see.  4119; 
Montana,  C.  C.  P.,  sec.  2580;  Nevada,  Comp.  Laws,  see.  2885;  New  Mexico, 
Comp.  Laws,  sees.  1935,  2094;  North  Dakoia,  Probate  Code,  sees.  6389- 
6398;  Oregon.  Codes  and  Statutes,  sec.  1153;  South  Dakota,  Probate 
Code,  sees.  153-161:  Utah,  Rev.  Stats.,  sec.  3846;  Washington,  Ballinger's 
Codes,  sec.  6219;  Wyoming,  Rev.  Stats.,  sec.  4733. 


No.   1478. — Petition — Order  Setting  Apart  Personalty. 
[Title  of  Court  and  Estate.] 

To  the  Honorable  Superior  Court  of  the  City  and  County  of  San 
Francisco,  State  of  California: 
The  petition  of  M.  J.,  the  administratrix  of  the  estate  of  T.  J., 
deceased,  respectfully  shows: 


PivTITION.  851 

That,  on  the  third  day  oi  June,  ipo6,  an  inventory  and  appraise- 
ment of  said  estate  were  duly  returned  to  said  superior  court. 

That,  as  appears  by  said  inventory  and  appraisement,  said  es- 
tate has  been  appraised  at  the  sum  of  fourteen  thousand  one  hun- 
dred and  thirty-seven  dollars. 

That  the  debts  of  said  estate  are  fezv,  and  do  not  exceed,  in  all 
probability,  the  sum  of  three  thousand  dollars;  and  that  said  es- 
tate is  solvent. 

That  your  petitioner  is  advised  and  believes  that  the  following 
personal  property,  belonq^ing  to  said  estate,  and  mentioned  in  said 
inventory  and  appraisement,  is  by  law  exempt  from  execution, 
to  wit:  One  parlor  stove,  one  large  mirror,  two  small  mirrors,  Hve 
carpets,  four  bedsteads,  beds  and  bedding,  tzvelve  chairs,  three 
tables,  one  desk,  one  sofa,  one  cooking-stove. 

That  the  amount  of  said  personal  property,  which  is  by  law  ex- 
empt from  execution,  is  insufficient  for  the  support  of  the  ividozv 
and  children  of  said  deceased  ;  and  that  an  allowance  out  of  the 
said  estate  is  necessary  for  the  maintenance  of  the  said  family ; 
and  that  the  sum  of  one  hundred  dollars,  gold  coin  of  the  United 
States,  per  month,  is  a  reasonable  allowance,  according  to  the  cir- 
cumstances of  said  family. 

Wherefore  your  petitioner  prays  that  all  of  the  said  personal 
property  may  be  set  apart  for  the  use  of  the  said  family ;  and  that 
an  allowance  of  one  hundred  dollars,  gold  coin  of  the  United 
States,  per  month  be  made  for  the  maintenance  of  said  family, 
out  of  said  estate,  during  the  progress  of  the  settlement  of  said 
estate. 

And  your  petitioner  will  ever  pray. 

2>rOTE.— California,  C.  C.  P.,  sees.  1464,  1465;  Alaska,  Codes,  pt.  4, 
c.  S3,  sees.  815-819;  Arizona,  C.  C,  par.  1725;  Idaho,  C.  C.  P.,  sec.  4119; 
Montana,  C.  C.  P.,  sec.  2580;  Nevada,  Comp.  Laws,  sec.  2885;  New  Mex- 
ico, Comp.  Laws,  sees.  19,35-2094;  North  Dakota,  Probate  Code,  sees. 
6.389-6398;  Oregon,  Codes  and  Statutes,  sec.  1153;  South  Dakota,  Probate 
Code,  sees.  151-161;  Utnh,  T?ev.  Stats.,  sec.  3846;  Washington,  Bollinger's 
Codes,  sec.  6219;  Wyoming,  Eev.  Stats.,  sec  4733. 


No.  1479. — Petition — Decree  Setting  Apart  Homestead. 
[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  of  the  City  and  County  of 
San  Francisco,  State  of  California: 

The  petition  of  M.  J.,  the  administratrix  of  the  estate  of  T.  J., 
deceased,  respectfully  shows: 

That  said  deceased  was  a  resident  of  the  said  city  and  county 


852  Ne;w  Book  0?  Forms. 

of  San  Francisco,  at  the  time  of  his  death,  and  left  estate,  real 
and  personal,  in  said  city  and  county. 

That  letters  of  administration  were  issued  to  said  M.  J.  on  the 
sixteenth  day  of  May,  igo6:  and  that  on  the  third  day  of  June, 
1906,  said  administratrix  duly  returned  an  inventory  and  ap- 
praisement of  said  estate  to  said  superior  court. 

That  a  certain  quantity  of  land  in  said  inventory,  and  here- 
inafter particularly  described,  together  with  the  dwelling-house 
thereon  and  its  appurtenances,  was  selected  by  said  deceased  in 
his  lifetime,  and  was  occupied  by  said  deceased  and  his  family 
at  the  time  of  his  death,  as  a  homestead ;  that  since  the  said  time 
of  his  death,  and  up  to  this  date,  the  widow,  the  said  M.  J.,  and 
the  children  of  said  deceased,  have  remained  in  the  possession  of 
the  said  homestead. 

That  the  same  does  not  exceed  in  value  the  sum  of  five  thou- 
sand dollars,  and  was  appraised,  as  appears  by  said  inventory 
and  appraisement,  at  the  sum  of  three  thousand  dollars  only. 

That  said  selection  was  made  by  said  deceased  and  his  said  zvife, 
M.  J.,  declaring  their  intention,  in  writing,  to  claim  the  same  as 
a  homestead ;  that  said  declaration  stated  an  estimate  of  the  value 
of  said  land,  and  showed  that  they  were  married  and  the  heads 
of  a  family ;  that  they  were,  at  the  time  of  making  such  declara- 
tion, residing  with  their  family  on  said  premises  (said  premises 
being  particularly  described  in  said  declaration),  and  that  it  was 
their  intention  to  use  and  claim  the  same  as  a  homestead,  which 
said  declaration  was  signed  by  the  said  party  making  the  same, 
and  acknowledged  and  recorded  as  conveyances  affecting  real  es- 
tate are  required  to  be  acknowledged  and  recorded. 

That  the  family  of  said  deceased  consists  of  said  M.  J.,  his 
widow,  and  W.  L,  J.  J.,  C.  and  E.  /.,  his  children. 

That  the  said  quantity  of  land  hereinbefore  referred  to  is  situ- 
ated in  said  city  and  county  of  San  Francisco,  state  of  California, 
and  is  bounded  and  particularly  described  as  follows,  to  wit: 
[Description.] 

Wherefore,  your  petitioner  prays  that  the  said  homestead,  con- 
sisting of  said  quantity  of  land,  together  with  the  dwelling-house 
thereon  and  its  appurtenances,  be  set  apart  for  the  use  of  the 
family  of  the  said  deceased. 

And  your  petitioner  will  ever  pray.     [See  Homestead.] 

NOTE.— California,  C.  C.  P.,  sees.  1474-1486;  Alaska,  Codes,  pt.  4,  c. 
83,  sees.  815-819;  Arizona,  C.  C,  par.  1732;  Idaho,  C.  C.  P.,  sec.  4126; 
Montana,  C.  G.  P.,  sec.  2590;  New  Mexico,  Comp.  Laws,  sees.  1935-2094; 
North  Dakota,  Probate  Code,  sees.  6389-6398;  South  Dakota,  Probata 
Code,  sees.  153-161;   Wyoming,  Eev.  Stats.,  see.  4741, 


Petition.  853 


No.    1480.— Petition  for  Order    to   Sell    Perishable    Personal 

Property. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Judge  of  the  Superior  Court  of  the  City 
and  County  of  San  Francisco,  State  of  California: 
The  petition  of  /.  C,  executor  of  the  will  of  S.  D.,  deceased, 
respectfully  shows : 

That  on  the  /j//?  day  of  May,  A.  D.  1^04,  letters  testamentary 
of  the  last  will  of  said  deceased  were  issued  to  your  petitioner, 
and  he  is  now  the  executor  of  said  will. 

That  at  Gridlcy,  in  the  county  of  Butte,  in  said  state,  there 
are  stored  //?  sacks  of  wheat,  which  will  be  liable  to  depreciate 
in  value  if  not  sold  without  delay,  on  account  of  great  danger  of 
being  destroyed  by  insects.  That  he  has  received  an  advantageous 
offer  for  said  zvlicat,  and  said  ofifer  is  the  present  market  value. 

Wherefore,  your  petitioner  prays  that  said  court  order  a  sale 
of  said  wheat  without  notice  being  given,  or  that  such  other  or 
further  order  may  be  made  as  is  meet  in  the  premises. 

And  your  petitioner  will  ever  pray,  etc. 

NOTE.— California,  C.  C.  P.,  sec.  1522;  Alaska,  Codes,  pt.  4,  c.  85, 
sees.  830-858;  Arizona,  C.  C,  par.  1767;  Idaho,  C.  C.  P.,  sec.  4161;  Mon- 
tana, C.  C.  P.,  sec.  2650;  Nevada,  Comp.  Laws,  sec.  2911;  New  Mexico, 
Comp.  Laws,  sees.  1935-2094;  North  Dakota.  Probate  Code,  sees.  6428- 
6434;  South  Dakota,  Probate  Code.  sees.  190-200;  Utah.  Rev,  Stats.,  sec. 
3885;  Washington,  Ballinger's  Codes,  sec.  6252;  Wyoming,  Eev.  Stats.! 
sec.  4772. 


No.  1481. — Petition  to  Sell  Real  Estate — For  Best  Interests 
of  Heirs  at  Law. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  of  the  City  and  County  of 
San  Francisco,  State  of  California: 

The  petition  of  /.  C.  R.,  as  the  executor  of  the  will  of  S.  D., 
deceased,  respectfully  represents: 

That  said  deceased  died  testate  on  the  ^th  day  of  April,  1904, 
in  the  city  and  county  of  San  Francisco,  state  of  California,  and 
at  the  time  of  his  death  he  was,  and  had  been  continuouslv  for 
many  years,  a  resident  of  said  city  and  county  and  state,  and  left 
estate  therein  consisting  of  real  and  personal  property  of  a  value 
in  excess  of  ten  thousand  dollars. 

That  thereafter,  on  the  75///  day  of  May,  1904,  this  court,  by 


854  New  Book  of  Forms. 

its  order  duly  g-iven,  made  and  entered,  .admitted  the  last  will 
of  S.  D.  to  probate  and  appointed  your  petitioner  the  executor 
thereof,  without  bonds,  and  thereafter,  on  ihe  same  day,  your 
petitior.er  duly  qualified  as  such  executor  and  letters  testamentary 
were  thereupon  issued  to  your  petitioner,  and  he  has  ever  since 
been,  and  now  is,  the  duly  appointed,  qualified  and  acting  execu- 
tor of  the  will  of  said  deceased. 

That  thereafter,  on  the  30th  day  of  June,  1904,  your  petitioner 
dulv  made  and  returned  to  this  court,  and  filed  with  the  clerk 
thereof,  true  inventories  and  appraisements  of  all  the  estate  of 
'said  deceased  which  has  come  to  the  possession  and  knowledge 
of  your  petitioner. 

That  the  following  is  the  amount  of  the  personal  estate  of  said 
deceased  that  has  come  to  the  hands  of  your  petitioner:  [Insert 
list  and  values.] 

That  all  of  said  personal  estate  remains  undisposed  of  and  in 
the  hands  of  your  petitioner,  except  the  sum  of  $10,000. 

That  the  only  debts  outstanding  against  said  decedent  at  the 
time  of  his  death,  so  far  as  can  be  ascertained  by  your  petitioner, 
are  the  following,  contracted  during  his  last  illness,  to  wit:  [In- 
,scrt  list.] 

That  the  debts,  expenses  and  charges  of  administration  already 
accrued  are  the  following:   [Insert  list.] 

That  nothing  is  due  or  will  be  due  for  any  family  allowance. 

That  an  estimate  by  your  petitioner  of  the  debts,  expenses  and 
charges  of  administration  which  will  or  may  accrue  during  the 
administration  of  the  said  estate  is  the  following:  [Insert  esti- 
mate.] 

That  the  total  amount,  as  aforesaid  set  forth,  of  the  debts  out- 
standing against  the  said  deceased,  the  estimated  debts,  expenses 
and  charges  of  administration  that  will  or  may  accrue,  is  the  sum 
of  $100,000. 

That  the  following  is  a  general  description  of  all  the  real  prop- 
erty of  which  the  decedent  died  seised,  or  in  which  he  had  any 
interest,  or  in  which  his  estate  has  acquired  any  interest,  and  the 
condition  and  value  thereof.  All  the  real  property  hereinafter 
described  is  the  separate  property  of  the  said  deceased:  [Insert 
description  of  each  piece,  and  its  improvements,  if  any,  and  ex- 
tent of  interest  of  deceased,  etc.] 

That  deceased  left  no  legatees  or  devisees.  That  the  names, 
ages  and  places  of  residence  of  the  heirs  of  said  deceased,  so  far 
as  known  to  your  petitioner,  are  as  follows :  /.  D.,  a  sister  of  the 
said  deceased,  aged  about  8y  years,  a  resident  of  Gahvay,  state 
of  Nezv  York;  M.  G.  S.,  a  niece  of  the  said  deceased,  aged  about 
50  vears,  a  resident  of    Churchville,  state  of  New  York;  H.  W. 


Petition.  855 

D.,  a  neplicw  of  the  said  deceased,  aged  about  ^j  years,  a  resi- 
dent of  ChurcJn'ille,  state  of  Neiv  York.  Since  the  death  of  the 
said  S.  D.,  his  nephew,  //.  W.  D.,  died  in  the  state  of  New  York, 
on  the  6th  day  of  May,  1904,  and  he  left  as  his  only  heirs  at  law 
his  widow,  E.  B.  D.,  aged  about  45  years,  a  resident  of  Church- 
ville,  state  of  Nezv  York,  and  their  daughter,  M.  B.  D.,  aged  about 
18  years,  a  resident  of  Churchville,  state  of  New  York,  and  their 
son,  S.  D.,  aged  about  //  years,  a  resident  of  Churchznllc,  state 
of  New  York. 

That  it  will  be  for  the  advantage,  benefit  and  best  interests 
of  the  estate,  and  those  interested  therein,  that  the  real  property 
of  the  said  deceased,  and  the  whole  thereof,  hereinfore  de- 
scribed, be  sold,  for  the  following  reasons:  The  heirs  of  tJie  said 
deceased,  as  above  mentioned,  consist  of  four  women,  to  wit,  a 
sister,  a  niece,  and  a  widow  and  daughter  of  a  nephew  dying  since 
the  death  of  said  deceased,  S.  D.;  all  of  these  women  reside  in 
the  state  of  Nezv  York,  and  the  eldest  thereof,  /.  D.,  who  is  heir 
to  one-half  of  all  the  estate  left  by  said  deceased,  is  87  years  of 
age,  and  is,  as  your  petitioner  has  been  informed  and  believes, 
incompetent  to  transact  business  by  reason  of  age  and  mental 
weakness ;  that  one  G.  H.  W.  has  been  appointed  guardian  of  her 
person  and  estate  in  the  state  of  Nezv  York,  and  there  is  a  peti- 
tion now  pending  in  this  court  by  one  H.  M.  A.  for  letters  of 
guardianship  on  her  estate  in  the  state  of  California.  The  onlv 
other  heir  of  said  deceased  is  a  grandnephew,  S.  D.,  a  youth 
aged  ly  years,  who  resides  with  his  mother  in  the  state  of  Nezv 
York.  None  of  the  said  heirs  are  familiar  with  the  said  real 
properties,  nor  with  their  management  or  operation,  nor  are  any 
of  them  within  the  state  of  California. 

That  none  of  the  said  real  properties  are  improved,  and  they 
do  not  aggregate  to  produce  an  income  equal  to  the  annual  taxes 
levied  against  them,  and  they  are  a  constant  expense  to  the  estate. 

In  nearly  all  of  the  properties  hereinbefore  described,  the 
ownership  of  the  deceased  is  an  undivided  interest,  and  in  order 
to  make  the  properties  available  and  profitable,  considerable  ex- 
penditures are  necessary,  which  the  other  owners  favor  making, 
but  which  your  petitioner  is  advised  and  believes  he,  as  executor, 
has  no  legal  authority  to  make,  or  pay  for  from  the  funds  of  the 
estate. 

That  said  property  is  not  of  a  character  to  admit  of  partition 
and  division  among  the  said  heirs,  but  is  of  such  a  character  with 
reference  to  its  future  disposition  among  the  said  heirs,  as  clearlv 
to  render  it  for  the  best  interests  of  all  concerned  that  the  same 
should  be  sold  and  the  proceeds  distributed  among  the  said  heirs 
in  accordance  with  their  respective  interests. 

That  the  condition  of  the  real  estate  market  in  the  cit\  and 
county  of  San  Francisco,  and  in  the  state  of  California,  at  the 


856  New  Book  of  Forms. 

present  time  is  such  that  said  real  properties  are  likely  to  realize 
good  prices,  and  if  kept,  said  real  properties  are  likely  to  depre- 
ciate in  value. 

\Mierefore,  your  petitioner  prays  that  an  order  be  made  by  this 
court  directing  all  persons  interested  in  the  said  estate  to  appear 
before  this  court,  at  a  time  and  place  specified,  not  less  than  four 
nor  more  than  ten  weeks  from  the  time  of  making  such  order, 
to  show  cause  why  an  order  should  not  be  granted  to  your  peti- 
tioner for  the  sale  of  the  said  real  property  of  the  said  deceased, 
situated  in  the  city  and  county  of  San  Francisco,  and  in  the  coun- 
ties of  Kings,  Tulare,  Fresno,  Sutter  and  Butte,  in  the  state  of 
California,  and  the  whole  thereof,  and  that  after  a  full  hearing 
upon  this  petition,  and  an  examination  of  the  proofs  and  allega- 
tions of  the  parties  interested,  and  due  proof  of  the  publication 
of  the  said  order  to  show  cause,  an  order  be  made  by  this  court 
authorizing  and  directing  your  petitioner  to  sell  the  said  real  prop- 
erty, and  the  whole  thereof,  either  at  public  or  private  sale,  as 
your  petitioner  shall  judge  to  be  most  beneficial  for  the  said  es- 
tate, and  that  such  other  and  further  order  be  made  as  may  be 
proper  in  the  premises. 

NOTE. — Such  petitions  may  be  granted  when  it  is  for  the  best  in- 
terests of  the  estate,  notwithstanding  there  are  not  debts  against 
it:  Gal.  C.  C.  P.,  S"c.  1536;  Alaska,  Codes,  pt.  4,  c.  85,  sec.  835;  Arizona, 
C.  C,  par.  1777;  Idaho,  C.  C.  P.,  sec.  4171;  Montana,  C.  C.  P.,  sec.  2670; 
Nevada,  Comp.  Laws,  sec.  2914;  New  Mexico,  Comp.  Laws,  sees.  1935, 
2094;  North  Dakota,  Probate  Code,  sees.  6428-6442;  Oregon,  Codes  and 
Statutes,  sec.  1172;  South  Dakota,  Probate  Code,  sees.  201-239;  Utah, 
Rev.  Stats.,  sec.  3877;  Washington,  Ballinger's  Codes,  sec.  6257;  Wyom- 
ing. Rev.  Stats.,  sec.  4781. 

See  Estate  of  Porter,  129  Cal.  86. 


No.   1482. — Petition  for  Order  of  Sale  of  All  the  Property 
of  the  Estate  at  One  Sale — Estate  Insolvent. 

[Title  of  Court  and  Estate.] 

[The  same  as  in  other  petitions  for  sales  of  real'  estate,  except 
the  footings  of  the  schedules  shozv  that  the  debts  are  greater  than 
the  assets;  then  continue  as  follows:] 

That  your  petitioner  states  that  it  is  necessary  to  sell  all  of  the 
property  of  the  estate  to  pay  the  family  allowance,  expenses  of 
administration  and  the  debts  of  the  estate.  That  your  petitioner 
is  informed  and  believes  that  when  the  family  allowance  and  ex- 
penses of  administrator  are  paid  that  the  creditors  cannot  be  paid 
in  full,  and  therefore  the  estate  is  insolvent. 

Wherefore  petitioner  prays  for  an  order  directing  all  the  prop- 
erty of  said  estate  of  every  character  to  be  sold  at  public  sale,  and 
that  only  one  sale  be  had. 


Petition.  857 

NOTE. — When  the  facts  are  as  above  stated  the  conrt  may  order  one 
Bale,  except  perishable  property  must  be  sold  as  is  provided  in  Code 
of  Civil  Procedure,  section  1522.  When  the  estate  is  insolvent  the  peti- 
tion for  an  order  of  sale  must  be  verified  and  contain  all  the  matters 
necessary  to  appear  in  a  general  petition  to  sell  real  estate:  Cal.  C.  C. 
P.,  sec.  1519;  Alaska,  Codes,  pt.  4,  c.  85,  sees.  830-858;  .\rizona,  C.  C^ 
par.  1767;  Idaho,  C.  C.  P.,  sec.  4161;  Montana,  C.  C.  P.,  sec.  2650;  Ne- 
vada, Comp.  Laws,  sec.  2911;  New  Mexico,  Comp.  Laws,  sees.  1935,  2i)94; 
Forth  Dakota,  Probate  Code,  sees.  2428,  6442;  South  Dakota,  Probate 
Code,  sees.  231-239;  Utah,  Rev.  Stats.,  sec.  3885;  Washington,  Ballingcr's 
Codes,  sec.  6252;  Wyoming,  Fev.  Stats.,  sec.  4722. 


No.  1483. — Petition — Order — Sale  of  Personal  Property. 
[Title  of  Court  and  Estate.] 

To  the  Honorable  /.  P.P.,  Judge  of  the  Superior  Court  of  the 
City  and  County  of  San  Francisco,  State  of  California: 

The  petition  of  M.  J.,  the  administratrix  of  the  estate  of  T.  J., 
deceased,  respectfully  shows : 

That  on  the  sixteenth  day  of  May,  1906,  letters  of  administra- 
tion of  the  estate  of  said  deceased  were  issued  to  your  petitioner, 
and  that  said  letters  have  not  been  revoked. 

That  immediately  after  her  appointment  she  caused  to  he  duly 
published  according  to  law,  a  notice  to  the  creditors  of  the  said 
deceased. 

That  the  following  claim  against  the  said  estate  has  been  duly 
allowed  and  tiled  in  the  said  court,  to  wit: 

The  claim  of  J.  S.,  for  the  sum  of  $i,§oo,  zvith  accruing  inter- 
est, at  the  rate  of  two  per  cent  per  month  from  tlie  tivcntictJi  day 
of  April,  igo6,  on  the  sum  of  $1,000,  zvhich  said  claim  was  pre- 
sented to,  and  allowed  and  approved  by  said  administratrix,  on 
said  twentieth  day  of  June,  ipo6,  and  presented  to  and  allozvcd 
and  approved  by,  the  judge  of  said  court,  on  the  tzuenty-second 
day  of  June,  igo6. 

That  tne  following  expenses  of  administration  have  been  in- 
curred, to  zvit: 

Fees  of  clerk  of  this  court $     /6  50 

Fees  of  appraisers  of  estate 30  50 

Fees  of  attorney  for  administratrix 100  00 

Amounting  to  the  sum  of $  14J  00 

That  on  the  sixth  day  of  July,  IQ0§,  an  allozvance  of  one 
hundred  dollars  per  month  was  didy  made  out  of 
said  estate,  by  said  court,  for  the  maintenance  of 
the  family  of  said  deceased,  during  the  progress  of 
the  settlement  of  said  estate,  payable  on  tlie  sixth- 
day  of  each  and  ezrry  month,  and  amounting,  at 
this  date,  to  the  sum  of  100  00 


858  New  Book  of  Forms. 

That  at  least  one  year  from  the  time  of  the  appointment 
of  said  administratrix,  to  ivit,  from  May  16,  1905, 
must  elapse  before  said  estate  can  he  closed,  when 
said  allozvance  zvill  have  amounted  to  the  addi- 
tional sum  of 1,030  00 


Amount  of  family  allozvance  due  and   to  become 

due    $1,130  00 

That  the  following  expenses  of  administration  zvill  necessarily 
he  incurred  before  said  administration  can  be  closed,  and  the  es- 
tate finally  settled,  to  wit: 

Fees  of  attorney  for  administratrix,  upon  closing  as 

per  agreement  $  400  00 

Commissions  upon  $14,13/. 00,  the  appraised  value  of 
said  estate,  and  the  probable  amount  of  the  whole 
estate  to  be  accounted  for  by  the  said  administra- 
trix upon  the  settlement  of  her  final  account. .. .      695  48 

Other  expenses 100  00 

Amounting  to  the  sum  of $i,i95  4^ 

And  making,  with  the  said  sum  of ^,300  00 

And 14Y  00 

And 1,130  00 

The  sum   of    $3,972  48 

That  no  moneys  of  said  estate  have  come  to  the  hands  of  your 
petitioner,  except  the  sum  of  fifty  dollars. 

That  said  intestate  died  possessed  of  personal  property,  particur- 
larly  described  in  the  inventory  and  appraisement  heretofore  re- 
turned to  said  court,  and  appraised  at  the  sum  of  $4,830  (exclu- 
sive of  the  household  furniture  heretofore  set  apart  for  the  use 
of  said  family),  as  will  appear  by  said  inventory  and  appraisement, 
which  your  petitioner  begs  leave  to  make  a  part  of  this  petition, 
and  that  said  property  is  now  of  the  value  of  about  $4,000  only. 

That,  therefore,  a  sale  of  the-  whole,  or  some  portion  of  said 
personal  property,  is  necessary  for  the  payment  of  said  claim,  ex- 
penses of  administration,  and  allowance  to  the  family. 

Wherefore  your  petitioner  prays  that,  after  notice  given  of  the 
hearing  of  this  application,  said  court  order  a  sale  of  the  whole 
or  so  much  of  the  said  personal  property  as  shall  he  necessary  for 
the  payment  of  said  claim,  expenses  of  administration,  and  allow- 
ance to  the  family  of  said  deceased,  or  that  such  other  or  further 
order  may  be  made  as  is  meet  in  the  premises. 

And  your  petitioner  will  ever  pray. 


Petition.  S59 

NOTE. — Tn  California,  the  exfcutor,  administrator,  or  special  admin- 
istrator may  apply  to  tho  court  or  jud<(c  for  an  ordor  to  sell  perishable 
and  other  personal  property  likely  to  depreciate  in  value,  or  which  will 
incur  loss  or  expense  by  being  kept,  and  so  much  other  personal  i>rop- 
erty  as  may  be  necessary  to  pay  the  allowance  made  to  the  family  of  the 
decedent.  The  order  for  the  sale  may  be  made  without  notice;  but  the 
executor,  administrator,  or  special  administrator  is  responsible  for  the 
property,  unless,  after  making  a  sworn  return,  and  on  a  proper  showing, 
the  court  shall  approve  the  sale  Cal.  C.  C.  P.,  sees.  1522,  1523  [see  Or- 
der to  Sell  Personal  Property];  Alaska,  Codes,  pt.  4.  c.  85,  sec.  830; 
Arizona,  C.  C,  par.  1767;  Idaho,  C.  C.  P.,  sec.  4161;  Montana,  C.  C.  P., 
sec.  2650;  Nevada.  Comp.  Laws,  sec.  2911;  New  Mexico,  Comp.  Laws, 
sees.  1935,  2094;  North  Dakota,  Probate  Code,  sees.  6428-6434;  South  Da- 
kota, Probate  Code.  sees.  231-230;  Utah.  Rev.  Stats.,  sec.  3885;  Washing- 
ton, Balliuger's  Codes,  sec  6252;   Wyoming,  Rev.  Stats.,  sec.  4772. 


No.  1484.— Petition  by  Administrator  to  Sell  Stock  in  Mining 

Company. 

[Title  of  Court  and  Estate.] 

The  petition  of  A.  B.  states  that  he  is  the  administrator  of  the 
above-entitled  estate,  which  is  now  in  due  course  of  adminis- 
tration. That  among  the  assets  of  said  estate  are  3,000  shares 
of  the  B.  R.  G.  Mining  Company,  a  California  corporation.  That 
the  said  mine  is  a  quartz  deposit  on  Nelson  creek  in  the  county 
of  Plumas,  California.  The  number  of  shares  in  said  company 
is  100,000.  That  said  mine  is  a  prospecting  venture,  and  all 
the  expenses  are  paid  out  of  assessments  levied  as  provided  by 
law.  That  an  assement  (No.  i8y)  is  now  in  process  of  collec- 
tion. That  said  assessment  is  ten  cents  upon  each  share  of  said 
$100,000.  That  the  condition  of  said  mine,  as  petitioner  is  in- 
formed and  believes,  is  as  follows :  The  quartz  lead  or  deposit  is 
about  6  feet  wide  and  3,000  feet  long,  containing  in  places  gold- 
bearing  quartz  that  will  mill  about  $1,500  a  ton,  on  the  surface 
wherever  it  is  probable  that  those  in  search  of  a  good  mine  for  an 
investment  would  be  apt  to  prospect,  but  such  values  have  not 
been  discovered  elsewhere.  Work  has  been  continued  during  six 
years  and  the  working  shaft  is  down  762  feet,  but  enough  quartz 
"has  not  been  discovered  to  warrant  the  erection  of  a  mill  to  re- 
duce the  ore.  There  is  an  abundance  of  water  in  the  mine  con- 
taining a  large  percentage  of  sulphur,  which  sulphur  may  be 
easilv  evaporated  and  become  a  source  of  more  or  less  profit  if 
the  gold  in  the  quartz  should  entirely  disappear,  and  also  there  is 
an  unlimited  amount  of  unusually  hard  slate  rock  between  de- 
posits of  granite,  but  the  gold-bearing  quartz  appears  to  be  dimin- 
ishing in  value,  recent  developments  showing  a  large  amount  of 
quartz  averaging  about  $1.30  a  ton,  which,  in  the  opinion  of  ex- 
perts, is  a  favorable  indication  of  an  indefinite  number  of  regu- 
lar assessments  in  the  near  future.     Because  of  the  foregoing  de- 


86o  New  Book  oi^  Forms. 

velopments,  petitioner  prays  for  an  order  authorizing  him  to  sell 
all  said  shares,  and  he  believes  it  is  for  the  best  interests  of  the 
estate  that  said  stock  be  sold,  because  the  estate  would  be  relieved 
of  the  harden  of  paying  assessments  on  said  stock,  and  a  better 
price  may  be  obtained  for  said  stock  at  the  present  time  than  in 
the  near  future  when  the  condition  and  value  of  said  mine  be- 
comes better  known. 

NOTE. — California,  C.  C.  P.,  sees.  1529-lo33;  also  Id.,  sees.  1536-1576; 
Alaska,  Codes,  pt.  4,  e.  85,  sec.  830;  Arizona,  C.  C,  pars.  1772,  1773,  2013; 
Idaho,  C.  C.  P.,  sees.  4166,  4167;  Montana,  C.  C.  P.,  sees.  2680,  2:561; 
New  Mexico,  Conip.  Laws,  sees.  1935,  2094;  North  Dakota,  Probate  Code, 
sees.  642S-6434;  South  Dakota,  Probate  Code,  sees.  196-200;  Wyoming, 
Eev.  Stats.,  sec.  4777. 


No.   1485. — Petition  for   Order  of  Sale  of  Real  Estate — All, 
Persons  Interested  Join  in  Petition. 

[Title  of  Court  and  Estate.] 

[The  same  as  in  a  petition  of  executor  or  administrator,  except 
commence  as  follows:] 

The  undersigned,  the  executor  of  the  last  will  of  A.  B.,  de- 
ceased, and  all  persons  interested  in  the  estate  of  the  said  A.  B., 
deceased,  respectfully  show:  [Then  contimie  as  in  a  petition  by  an 
executor  or  administrator  and  after  the  signature  of  the  executor 
and  after  each  signature  write,  if  a  creditor  of  the  estate,  the 
word  "creditor" ;  if  a  guardian,  legatee,  devisee,  or  heir,  a  similar 
description  of  the  class  to  which  the  person  belongs,  and  verify 
in  the  same  manner.] 

[See  form  No.  i486.] 

NOTE. — In  a  large  majority  of  estates  the  above  form  will  be  ap- 
plicable. If  all  persons  interested  join  in  the  petition  or  signify  in 
writing  their  assent  to  a  sale,  "tTie  notice  may  he  difspe^ised  with  and 
the  hearing  had"  on  the  same  day:  Cal.  C.  C.  P.,  sec.  1539;  Alaska,  Cod^s, 
pt.  4,  c.  85,  sees.  830-835;  Arizona,  C.  C,  par.  1780;  Idaho,  C.  C.  P.,  sec. 
4174;  Montana,  C.  C.  P.,  sec.  2673;  Nevada,  Comp.  Laws,  sec.  2917;  New 
Mexico,  Comp.  Laws,  sees.  1935,  2094;  North  Dakota,  Probate  Code,  sees. 
6428-6442;  Oregon,  Codes  and  Statutes,  sec.  1175:  South  Dakota,  Probate 
Code,  sees.  201-239;  Wyoming,  Eev.  Stats.,  sec.  4784. 


No.  1486.— Petition  for  Order  of  Sale  of  Real  Estate— All  Per- 
sons Interested  Assent  in  Writing. 

[Title  of  Court  and  Estate.] 

[The  same  as  in  a  petition  by  executor  or  administrator.     Omit 
all  about  publication  of  notice  and  conclude  as  follows:] 


P£;tition.  8ui 

That  all  persons  interested  in  said  estate  have  signified  their 
assent  to  said  sale,  and  their  assent  is  now  on  file  in  this  court, 
and  a  copy  thereof  is  herein  referred  to  and  made  a  part  of  this 
petition,  and  marked  Exhibit  "A." 

Wherefore  petitioner  prays  that  notice  of  said  sale  may  be  dis- 
pensed with,  and  that  a  sale  may  be  had  within  the  shortest  lime 
the  court  will  fix.  That  such  sale  is  a  matter  of  urgency,  a  pur- 
chaser having  been  found  who  will  pay  for  said  real  estate  a  price 
satisfactory  to  all  persons  interested. 

NOTE.— California,  C.  C.  P.,  sec.  1.539.  Such  consent  must  be  filed, 
and  therefore  cannot  be  an  attached  exhibit:  Id.,  sec.  1540;  Alaska, 
Codes,  pt.  4,  c.  85,  sees.  830-835;  Arizona,  C.  C,  par.  1781;  Idaho,  C.  C. 
P.,  sec.  4175;  Montana,  C.  C.  P.,  sec.  2G74;  Nevada,  Comp.  Laws,  sec. 
2918;  New  Mexico,  Comp.  Laws,  sees.  1935,  2094;  North  Dakota,  Probate 
Code,  sees.  6428-6442;  South  Dakota,  Probate  Code,  sees.  201,  239;  Wash- 
ington, Ballinger's  Codes,  sec.  6260;  Wyoming,  Rev.  Stats.,  sec.  4785. 


No.  1487.— Petition  for    Order  of    Sale  of  Real    Estate — By 

Creditor  for. 

[Title  of  Court  and  Estate.] 

[The  same  as  by  an  administrator  or  executor,  except  com- 
mence as  follows:] 

The  petition  of  A.  B.  shows  to  the  court  that  he  is  a  creditor  of 
said  estate  and  C.  D.  is  the  administrator  thereof. 

That  it  is  for  the  best  interests  of  said  estate  and  those  inter- 
ested therein  that  all  the  real  estate  belonging  to  said  estate  be 
sold.  That  petitioner  has  requested  the  said  administrator  to 
apply  for  such  order  of  sale  but  he  has  refused,  and  does  now  re- 
fuse. [Continue  and  state  the  facts  shoivn  by  the  record,  respect- 
ing the  condition  of  the  estate  as  it  appears  from  the  inventory 
and  statements;  if  any,  and  conclude  as  follows;] 

Wherefore  petitioner  prays  for  an  order  directing  said  admin- 
istrator to  make  a  sale  of  all  the  real  estate  belonging  to  said  es- 
tate ;  and  that  a  citation  issue  to  him  to  show  cause  why  said  sale 
should  not  be  made. 

NOTE. — Such  petition  must  contain  as  many  of  the  facts  necessary 
to  be  stated  in  petitions  for  orders  to  sell  real  estate  as  provided  in  sec- 
tion 537,  Code  of  Civil  Procedure,  where  an  executor  or  administrator 
makes  the  application.  If  the  interested  person  petitioning  cannot  as- 
certain all  the  facts  because  of  the  silent  record  in  the  matter  of  the 
estate,  he  must  make  the  best  showing  practicable:  Cal.  C.  C.  P.,  sec. 
1545;  Alaska,  Codes,  pt.  4,  c.  85,  sees.  830,  885;  Arizona,  C.  C,  par.  1786; 
Idaho,  C.  C.  P..  sec.  4180;  Montana,  C.  C.  P..  sec.  2679;  Nevada,  Comp. 
Laws,  RC(\  2923:  New  Mexico.  Comp.  Laws,  sees.  1935.  2094;  North  Da- 
kota, Probate  Code,  sees.  2428,  6442;  South  Dakota.  Probate  Code.  sees. 
201-239;  Utah.  Rev.  Stats.,  sec.  3888;  Washington,  Ballinger's  Codes,  sec 
6262;  Wyoming,  Rev.  Stats.,  sec.  4790. 


862  Nsw  Book  of  Forms. 

No.  1488. — Petition — Guardian  for  Sale  of  Real  Estate. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  said  Superior  Court  of  the  City  and  County 
of  Sail  Francisco,  State  of  California: 

The  petition  of  M.  J.,  the  guardian  of  the  persons  and  estates 
of  IV.  J.,  aged  4,  C.  J.,  aged  6,  and  B.  J.,  aged  8  years,  minors, 
respectfully  shows : 

That  on  the  twelfth  day  of  December,  1905,  letters  of  guard- 
ianship were  issued  to  your  petitioner  by  this  court ;  that  your 
petitioner  thereupon  duly  entered  upon  the  discharge  of  her 
duties  as  such  guardian ;  and  that  such  letters  have  not  been  re- 
voked. 

That  within  three  months  after  her  appointment,  to  wit,  on 
the  second  day  of  March,  190^,  your  petitioner  duly  returned  to 
this  court  a  true  inventory  and  an  appraisement  of  all  the  estate, 
real  and  personal,  of  her  said  wards  that  has  come  to  her  posses- 
sion or  knowledge. 

That  the  following  is  a  description  of  all  the  real  estate  belong- 
ing to  said  ward  :   [Description.] 

That  the  facts  and  circumstances  upon  which  this  petition  is 
founded  and  which  render  a  sale  of  the  whole  of  the  said  real 
estate  necessary  and  beneficial  (or  either),  are  as  follows: 

Said  wards  have  no  income,  except  the  rents  of  said  land.  The 
best  rent  obtainable  is  three  hundred  dollars  a  year  for  all  the 
land.  The  least  sum  suiUcient  for  the  maintenance  of  said  wards 
is  $450  a  year,  or  $130  for  each.  The  taxes  on  said  land  aver- 
age $30  a  year,  leaving  a  deficit  of  $200  a  year.  It  will  be  there- 
fore necessary  to  sell  all  of  said  land  for  the  purpose  of  using 
the  proceeds  to  maintain  said  wards. 

Wherefore  your  petitioner  prays  that  this  honorable  court 
make  an  order  directing  the  next  of  kin  of  the  said  zvards,  and  all 
persons  interested  in  the  said  estate,  to  appear  before  this  court, 
to  show  cause  why  an  order  should  not  be  granted  for  the  sale  of 
such  estate ;  and  that  upon  such  hearing  this  honorable  court  may 
order  said  real  estate  to  be  sold,  for  the  maintenance  and  educa- 
tion of  the  said  wards,  or  that  such  other  or  further  order  may  be 
made  as  is  meet  in  the  premises. 

And  your  petitioner  will  ever  pray,  etc. 

NOTE. — In  California,  when  the  income  of  an  estate  under  guardian- 
ship is  insufficient  to  maintain  the  ward  and  his  family,  or  to  maintain 
and  educate  the  ward  when  a  minor,  his  guardian  may  sell  his  real  or 
personal  estate  for  that  purpose,  upon  obtaining  an  ordfr  therefor:  C^l. 
C.  C.  P.,  sec.  1777;  Alaska,  Codes,  pt.  4,  c.  89,  sees.  918-939;  Arizona, 
C.  C,  par.  1997;  Idaho,  C.  m.  P.,  sec.  4.366:  Montana,  C.  C.  P..  sec.  3000; 
Kevada,   Comp.   Laws,   see.   579;    New   Mexico,   Comp.   Law?,   eecs.   1935- 


Petition,  863 

2094;  North  Dakota,  Probate  Code,  sees.  2424-6442;  Oregon,  Cofles  and 
Statutes,  sec.  5592;  South  Dakota,  Probate  Code,  sees.  392-407;  Utah, 
Eev.  Stats.,  see.  4015;  Washington,  Ballinger's  Codes,  sec.  6411;  Wy- 
oming, Bev,  Stats.,  sec.  4907. 


No.  1489. — Petition  of  Guardian  for  Order  of  Sale — Real  Es- 
tate. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  said  Superior  Court  of  the  City  and  County 
of  San  Francisco,  State  of  California: 

The  petition  of  M.  J.,  the  guardian  of  the  persons  and  estates 
of  IV.  J.,  aged  4,  C.  J.,  aged  6,  and  E.  J.,  aged  8  years,  minors, 
respectfully  shows : 

That  on  the  tzvelfth  day  of  December,  jpo^,  letters  of  guard- 
ianship were  issued  to  your  petitioner  by  this  court;  that  your 
petitioner  thereupon  duly  entered  upon  the  discharge  of  her 
duties  as  such  guardian ;  and  that  such  letters  have  not  been  re- 
voked. 

That  within  three  months  after  her  appointment,  to  wit,  on 
the  second  day  of  January,  1905,  your  petitioner  duly  returned  to 
this  court  a  true  inventory  and  an  appraisement  of  all  the  estate, 
real  and  personal,  of  her  said  wards  that  has  come  to  her  pos- 
session or  knowledge. 

That  the  following  is  a  full  description  of  all  the  real  estate 
belonging  to  said  minors. 

An  undivided  three-eighths  in  all  that  certain  lot,  piece,  or  par- 
cel of  land,  situate  in  the  city  and  county  of  San  Francisco,  state 
of  California,  and  described  as  follows,  to  wit:  [Description.] 

One-third  of  the  above  three-eighths,  that  is,  an  undivided  one- 
eighth  of  the  zvhole  of  said  land,  belongs  to  each  of  said  minors. 

Said  minors  have  no  other  property  than  the  above;  the  sum  of 
$16^.6214,  belonging  to  each,  paid  to  your  petitioner,  upon  her  re- 
ceiving letters  of  guardianship,  by  the  late  administratrix  of  the 
estate  of  their  father,  T.  J.,  deceased,  and  mentioned  in  the  in- 
ventory, having  been  all  disposed  of  by  your  petitioner,  in  the 
maintenance  and  education  of  said  minors,  and  she  has  nozv  no 
moneys  in  her  hands  belonging  to  said  minors. 

The  above  real  estate  is  unimproved,  and  yields  no  income 
wliatever;  and  said  undivided  eighth  interest  is  of  the  value  of 
$i,jOO,  or  thereabouts,  that  being  also  the  appraised  value  thereof. 

That  the  facts  and  circumstances  upon  which  this  petition  is 
founded  anc  w^hich  render  a  sale  of  the  whole  of  the  said  real 
estate  necessary  and  beneficial  are  as  follows;  The  taxes,  state, 
and  city  and  county,  levied  and  collected  each  year,  on  the  inter- 
est of  said  wards  in  said  land  are  $2^.^o.  There  is  now  a  peti- 
tion before  the  board  of  superzisors  of  said  city  and  county  to 


864  New  Book  of  Forms. 

grade,  sidewalk,  sezver,  and  pave  the  street  in  front  of  the  said 
land.  That  said  petition  will  probably  be  granted  and  the  pro- 
posed work  done  because  the  United  Railroads  Companies  have 
a  franchise  for  a  railroad  along  said  street,  and  said  street  is 
necessary  for  the  uses  of  said  railroad  company.  That  your  peti- 
tioner has  been  offered  $1,500  for  said  property.  That  if  said 
property  is  sold,  petitioner  proposes,  if  permitted  by  the  court,  to 
invest  the  proceeds  in  the  stock  of  B.  W.  and  Company,  a  corpo- 
ration whose  stock  pays  twenty  per  cent  per  annum  dividends  to 
its  stockholders,  and  said  dividends  are  liable  to  continue  until 
said  younger  child  is  of  legal  age. 

Wherefore,  your  petitioner  prays  that  this  honorable  court 
make  an  order  directing  the  next  of  kin  of  the  said  wards  and  all 
persons  interested  in  the  said  estate,  to  appear  before  this  court 
at  a  time  and  place  therein  specified,  not  less  than  four  nor  more 
than  eight  weeks  from  the  time  of  making  such  order,  to  show 
cause  why  an  order  should  not  be  granted  for  the  sale  of  such 
estate ;  and  that  upon  such  hearing,  this  honorable  court  may 
order  said  real  estate  to  be  sold,  in  order  that  the  proceeds  may  be 
put  out  at  interest,  or  invested  in  some  other  productive  stock, 
if  not  the  stock  aforesaid,  or  that  such  other  or  further  order 
may  be  made  as  is  meet  in  the  premises. 

And  your  petitioner  will  ever  pray,  etc. 

NOTE. — In  California,  the  court,  upon  the  petition  of  the  guardian, 
it  appearing  to  be  for  the  benefit  of  his  ward  that  his  real  estate,  or 
some  part  thereof,  should  be  sold,  and  the  proceeds  thereof  put  out  at 
interest,  or  invested  iu  some  productive  stock,  or  in  the  improvement  or 
security  of  any  other  real  estate  of  the  ward,  his  guardian  may  sell  the 
same  for  such  purpose,  upon  obtaining  an  order  therefor:  Cal.  C.  C.  P., 
sec.  1778;  Alaska,  Codes,  pt.  4,  c.  89,  sees.  918-939;  Arizona,  C.  C,  par. 
1998;  Idaho,  C.  C.  P.,  sec.  4367;  Montana,  C.  C.  P.,  sec.  3001;  Nevada, 
Comp.  Laws,  sec.  580;  New  Mexico,  Comp.  Laws,  sees.  1935-2094;  North 
Dakota,  Probate  Code,  sees.  6428-6442;  Oregon,  Codes  and  Statutes,  sec. 
5593;  South  Dakota,  Probate  Code,  sees.  392,  407;  Wyoming,  Rev.  Stats., 
sec.  4958. 


No.  1490. — Petition — Order  of  Sale  of  Real  Estate. 

[Title  of  Court  and  Estate.] 

To  the  Honorable  /.  F.,  judge  of  the  said  Superior  Court  of 
the  City  and  County  of  San  Francisco,  State  of  California: 

The  petition  of  M.  J.,  the  administratrix  of  the  estate  of  T.  J., 
deceased,  respectfully  shows: 

That  said  T.  J.  died  intestate,  on  or  about  the  seventeenth  day 
of  April,  igo6,  in  the  city  and  county  of  San  Francisco,  being 
at  the  time  of  his  death  a  resident  of  the  city  and  county  of  San 
Francisco,  and  leaving  estate  in  said  city  and  county. 


Petition.  865 

That  on  the  sixteenth  day  of  May,  igo6,  your  petitioner  duly 
qualified  as  such  administratrix,  and  that  letters  of  administra- 
tion of  said  estate,  signed  by  the  clerk,  and  under  the  seal  of 
said  court,  were  thereupon  duly  issued  to  your  petitioner,  and 
have  not  been  revoked. 

That  your  petitioner  duly  made  and  returned  to  said  court, 
after  her  appointment,  to  wit,  on  the  sixth  day  of  June,  igo6,  a 
true  inventory  and  appraisement  of  all  the  estate  of  the  said 
deceased,  which  has  come  to  her  possession  or  knowledge,  and 
also  published  notices  to  the  creditors  of  said  decedent  as  required 
by  law. 

All  which  will  more  fully  appear  by  reference  to  the  papers  on 
file  in  the  clerk's  office,  and  to  the  records  of  said  court  in  the 
matter  of  said  estate,  which  is  hereby  made. 

1.  That  the  amount  of  personal  estate  that  has  come  to  the 

hands  of  your  petitioner  is  the  sum  of $4,168  30 

Appraised  value  of  the  personal  property  set  apart  for 

the  use  of  the  family  of  the  deceased 28/  00 

Whole  amount  of  personal  property $4455  50 

That  a  portion  of  said  personal  property  has  been 

disposed  of  as  follows,  to  wit: 

The  said  personal  property  set  apart  for  the  use  of  said 
family,  and  the  sum  of  $458.50,  cash  paid,  expenses 
of  administration,  and  fami-ly  allozvance,  leaving  in 
the  hands  of  your  petitioner  the  sum  of  only $3,710  00 

2.  That  the  debts  outstanding  against  the  said  de- 
ceased, as  far  as  can  be  ascertained  or  estimated, 
amount  at  this  date  to  the  sum  of ^,450  00 

And  are  fully  set  forth  in  the  schedule  marked  "A," 
hereunto  annexed,  and  made  a  part  of  this  petition. 

3.  That  the  amount  due  upon  the  family  allowance  is 

the  sum  of   600  00 

4.  That  the  debts,  expenses,  and  charges  of  the  ad- 
ministration already  accrued,  amount  to  the  sum  of.  ..       4^8  50 

And  are  fully  set  forth  in  the  schedule  marked  "B," 
hereunto  annexed,  and  made  a  part  of  this  petition. 

5.  That  the  debts,  expenses  and  charges  of  admin- 
istration that  will  or  may  accrue  during  the  adminis- 
tration  are   estimated   by   your   petitioner   at   the   sum 

of 1.195  4S 

And  are  fully  set  forth  in  the  schedule  marked  "C," 
hereunto  annexed,  and  made  a  part  of  this  petition- 
New  Forms — 55 


866  New  Book  of  Forms. 

\Vhole  amount  of  the  debts  outstanding  against  the 
deceased,  of  the  amount  due  and  to  become  due  upon 
the  family  allowance,  of  the  debts,  expenses  and  charges 
of  administration  already  accrued  and  remaining  un- 
paid, state  and  county  taxes,  and  of  the  estimated  debts, 
expenses  and  charges  of  administration  that  will  or 
may  accrue   $4.4/ f;. 48 

That  a  full  description  of  all  the  real  estate  of  which  the  said 
decedent  died  seised,  or  in  which  he  had  any  interest,  or  in  which 
the  said  estate  has  acquired  any  interest,  and  the  condition  and 
value  of  the  respective  portions  and  lots  of  said  real  estate,  are 
set  forth  in  the  schedule  marked  "D,"  hereunto  annexed,  and 
made  a  part  of  this  petition. 

That  the  zuhole  of  said  real  estate  was  acquired  by  said  de- 
ceased, after  his  marriage  to  your  petitioner,  and  is  therefore 
community  property. 

That  the  following  are  the  names  and  ages  of  the  devisees  {if 
any]  and  heirs  of  the  said  deceased,  to  wit:  /.  /.,  aged  tzventy- 
three  years,  W.  J.,  aged  eighteen  years,  C.  J.,  aged  sixteen  years, 
and  E.  J.,  aged  fourteen  years,  the  children  of  said  deceased  and 
your  petitioner. 

Your  petitioner  therefore  alleges  that  the  personal  estate  in 
the  hands  of  your  petitioner  is  insufficient  to  pay  the  allowance 
of  the  family,  the  debts  outstanding  against  the  deceased,  and 
the  debts,  expenses,  and  charges  of  the  administration,  and  that 
it  is  necessary  to  sell  the  whole  or  some  portion  of  the  real  estate 
for  such  purposes. 

SCHEDULE  "A." 

Claim  of  J.  S.,  for  the  sum  of  $1,^00,  zvith  interest  on  the 
sum  of  $1,000,  at  the  rate  of  two  per  cent  per  month,  from  the 
twentieth  day  of  April,  ipo6. 

Allowed  and  approved  by  the  administratrix  June  21,  1006,  and 
by  the  judge  of  this  court  June  22,  jpo6. 

Claim  of  G.  T.,  funeral  expenses,  for  the  sum  of  $200. 

Allowed  and  approved  by  the  administratrix  June  21,  ipod,  and 
by  the  judge  of  this  court  June  2^,  ipo6. 

Claim  of  Dr.  C.  G.  B.,  expenses  last  sickness,  for  the  sum  of 
$230. 

Allozved  and  approved  by  the  administratrix  and  the  judge  of 
this  court  July  i,  ipo6. 

Claim  of  A.  P.,  balance  of  account,  for  the  sum  of  $500. 

Allowed  and  approved  by  the  administratrix  and  the  judge  of 
this  court  July  5,  ipo6.     Total,  $2,430. 


Petition.  867 

SCHEDULE  "B." 

Fees  of  clerk  of  this  court $  16  50 

Fees  of  appraisers  of  estate  30  30 

Fees  of  attorney  for  administratrix   100  00 

Publication  of  notice  to  creditors 5  00 

Publication  of  notice  of  application  for  order  of  sale  of 

personal  property   5  00 

Notary   fees,   affidavits   to   return   of  sale   of  personal 

property   i  30 

Allowance  to  family  of  deceased ^00  00 

$   45^  50 
SCHEDULE  "C." 
Fees  of  attorney  for  administratrix  upon  closing  said 

estate,  as  per  agreement  $    400  00 

Co-mmissiofis  upon  $14,1^/. 00,  the  appraised  value  of 

said  estate  and  the  probate  amount  of  the  whole  es- 

.    tate  to  be  accounted  for  by  the  said  administratrix, 

upon  the  settlement  of  ker  iinal  account dp5  48 

Other  expenses  100  00 


$1,195  4S 
SCHEDULE  "D." 

[Give  list  and  value  of  real  property,  describing  same  by  metes 
and  bounds,  and  stating  whether  it  is  improved  or  unimproved, 
the  number  and  character  of  the  buildings,  etc.,  the  amount  of 
rents  received  from  it,  and  any  other  fact  tending  to  show  the 
condition  of  the  property.] 

[That  it  will  be  for  the  best  interests  of  this  estate  to  sell  said 
property  at  private  sale,  giving  reasoJis.] 

Wherefore  your  petitioner  prays  that  an  order  be  made  by 
said  court  [or  your  honor]  directing  all  persons  interested  in  said 
estate  to  appear  before  said  court  at  a  time  and  place  specified, 
not  less  than  four  nor  more  than  ten  weeks  from  the  time  of 
making  such  order,  to  show  cause  why  an  order  should  not  be 
granted  to  your  petitioner  to  sell  so  much  of  the  real  estate  of  the 
deceased  as  shall  be  necessary,  at  private  sale. 

And  that  after  a  full  hearing  of  this  petition,  and  examination 
of  the  proofs  and  allegations  of  the  parties  interested,  and  due 
proof  of  the  publication  of  a  copy  of  said  order  to  show  cause, 
etc.,  an  order  of  sale  be  made  authorizing  your  petitioner  to  sell 
so  much  and  such  parts  of  the  said  real  estate  as  said  court  shall 
judge  necessary  or  beneficial;  or  that  such  other  or  furtlier  order 
may  be  made  as  is  meet  in  the  premises. 

And  your  petitioner  will  ever  pray,  etc. 


868  New  Book  of  Forms. 

NOTE. — In  California  the  petition  must  be  verified,  setting  forth 
the  amount  of  jicrsonal  estate  that  has  come  to  the  petitioner's  hands, 
and  how  much  remains  undisposed  of;  the  debts  outstanding,  as  far  as 
can  be  ascertained  or  estimated;  the  amount  due  upon  the  family  allow- 
ance, or  what  will  be  due  after  the  same  has  been  in  force  for  one  year; 
the  debts,  expenses,  and  charges  of  administration  already  accrued,  and 
an  estimate  of  what  will  or  may  accrue  during  the  administration  [a  gen- 
eral description  of  all  the  real  property  of  the  state  or  in  which  de- 
ceased had  any  interest,  or  in  which  the  estate  has  acquired  any  inter- 
est, and  the  condition  and  value  thereof,  and  whether  the  same  be  com- 
munity or  separate  property;  the  names  of  the  legatees  and  devisees, 
if  any,  and  of  the  heirs  of  the  deceased,  so  far  as  known  to  the  peti- 
tioner. If  any  of  the  matters  here  enumerated  cannot  be  ascertained  it 
must  be  so  stated  in  the  petition;  but  a  failure  to  set  forth  the  facts 
showing  the  sale  to  be  necessary  will  not  invalidate  the  subsequent  pro- 
ceedings if  the  defect  be  supplied  by  the  proofs  at  the  hearing,  and  the 
general  facts  showing  such  necessity  be  stated  in  the  decree] :  Cal.  C. 
C.  P.,  sec.  1537;  Alaska,  Codes,  pt.  4,  c.  85,  sees.  830-858;  Arizona,  C. 
C,  par.  1778;  Idaho,  C.  C.  P.,  sec.  4172;  Montana,  C.  C.  P.,  sec.  2671; 
Nevada,  Comp.  Laws,  sec.  2915;  New  Mexico,  Comp.  Laws,  sees.  193.5- 
2094;  North  Dakota.  Probate  Code,  sees.  2428-6442;  Oregon,  Codes  and 
Statutes,  sec.  1173;  South  Dakota.  Probate  Code,  sees.  201-239;  Utah,  Rev. 
Stats.,  sec  3S88;  Washington,  Ballinger's  Codes,  sec  6257;  Wyoming, 
Eev.  Stats.,  sec.  4782. 


No.  149 1. — Petition  for  Order  to  Sell  Real  Estate  to  Pay  In- 
heritance Tax. 

[Title  of  Court  and  Estate.] 

[The  same  as  in  No.  1490,  down  to  and  including  the  words, 
"That  the  following-  are  the  names  and  ages  of  the  heirs  of  said 
deceased,"  and  continue  as  follows:] 

That  all  the  personal  property  and  the  real  estate  has  been  ex- 
hausted in  the  payment  of  the  debts,  expenses  and  family  allow- 
ance and  state  and  county  taxes. 

That  it  is  necessary  to  sell  all  the  real  estate  belonginf^  to  the 
estate  to  pay  the  inheritance  tax  imposed  by  the  laws  of  the  state 
of  California.  That  the  said  real  estate  consists  of  a  mininc: 
claim  and  improvements.  That  its  appraised  value  is  thirty-five 
thousand  dollars.  That  petitioner's  exemption  is  $25,000.  That 
since  the  death  of  her  husband  petitioner  mortgaged  her  inter- 
est in  said  m.ine  for  $15,000  and  expended  it  in  improvements  and 
in  developing  said  mine.  That  interest  at  ten  per  cent  per  year 
has  been  accumulating  on  said  inheritance  tax  during  said  mort- 
gage and  there  is  now  due  the  state  of  California  $500  principal 
and  $200  interest,  and  on  said  mortgage  $15,000  principal  and 
$^,000  interest. 

Wherefore,  etc.   [the  same  as  in  No.  1490]. 

NOTE.— Act  of  March  20,  1905;  Stats.,  p.  341,  sec  5. 


Petition.  V,Oj 

No.  1492. — Petition — Mortgage  to. 

[Title  of  Court  and  Estate.] 

The  petition  of  M.  D.,  the  administratrix  of  the  estate  of  C.  D., 
deceased,  respectfully  shows : 

1.  That  said  C.  D.  died  intestate  in  the  said  city  and  county  of 
San  Francisco,  state  of  California,  on  the  6th  day  of  May,  190^. 
That  at  the  time  of  his  death  he  was  a  resident  of  said  city  and 
county,  and  left  estate  therein  consisting  of  real  and  personal 
property. 

2.  That  on  the  26th  day  of  May,  1903,  on  proceedings  herein 
for  that  purpose  duly  had,  your  petitioner  was,  by  this  court,  ap- 
pointed the  administratrix  of  the  estate  of  said  C.  D.,  deceased, 
and  she  having  thereupon  duly  qualified  as  such  administratrix, 
letters  of  administration  of  the  said  estate  were  duly  issued  to 
her  on  said  day.  At  all  times  since  she  has  been,  and  now  is, 
the  duly  appointed,  qualified,  and  acting  administratrix  of  the 
estate  of  C.  D.,  deceased.  That  on  the  2 2d  day  of  August,  1903, 
your  petitioner  returned  and  filed  herein  a  true  inventory  and  ap- 
praisement of  all  the  property  of  said  estate.  That  your  peti- 
tioner has  caused  notice  to  the  creditors  of  said  deceased  and  of 
his  said  estate  to  be  published,  as  required  by  law  and  the  order 
of  this  court ;  and  that  heretofore,  to  wit,  on  May  31,  1904,  this 
court  made  and  filed  herein  its  decree  declaring  that  due  notice  to 
said  creditors  had  been  duly  given.  That  the  time  for  presen- 
tation of  the  claims  of  said  creditors  has  expired. 

That  on  the  13th  day  of  August,  1904,  your  petitioner  filed 
herein  her  first  annual  account  of  her  administration  of  said  es- 
tate, which,  on  the  28th  day  of  August,  1904,  was,  by  this  court, 
duly  approved  as  rendered.  That  by  said  account  it  appeared 
that  there  was  then  in  her  hands  belonging  to  said  estate  a  cash 
balance  of  eight  hundred  and  ninety  and  i-ioo  dollars.  That  she 
has  since  collected  the  further  sum  of  $1,000,  so  that  the  total 
amount  now  in  her  possession  belonging  to  said  estate  is  the  sum 
of  $1,890  I-IOO. 

That  the  other  personal  property  of  said  estate  consists  of 
promissory  notes  and  bills  receivable  for  store  accounts  which 
are  diificult  to  collect  or  realize  upon,  and  that  the  same  cannot 
be  collected  zvithin  one  year  herefrom.  Upon  her  information 
and  belief  she  states  that  the  total  amount  of  money  finally  rea- 
lized from  said  collection  will  not  exceed  the  sum  of  $3,000. 
[Description.] 

That  the  real  property  of  said  deceased  and  of  his  said  estate 
is  situated  in  the  city  and  county  of  San  Francisco,  and  is  de- 
scribed as  follows: 


870  New  Book  of  Forms. 

That  the  said  lot  of  land  has  five  buildings  thereon,  and  that 
they  now  yield  a  monthly  rental  of  one  hundred  and  ten  dollars. 
That  the  value  of  said  real  property,  as  set  forth  in  said  appraise- 
ments on  file  herein,  is  the  sum  of  twenty  thousand  seven  hundred 
and  sixty-eight  dollars. 

That  said  real  property  is  encumbered  by  (i)  a  mortgage  to 
secure  the  payment  of  two  thousand  dollars  by  said  deceased,  the 
claim  wherefor  has  been  presented  and  allowed  herein  as  a  debt 
of  said  estate,  and  (2)  a  lease  for  five  years  from  March  i,  1904, 
covering  the  southwest  corner  of  said  lot  fronting  thirty-one  and 
a  half  feet  on  Filbert  street  by  ninety  feet  on  Fillmore  street. 

That  claims  of  the  creditors  of  said  deceased  and  of  his  said 
estate  have  been  presented,  approved  and  filed  herein  as  follows : 

Claimant.  Character  of  Claim.  Amount  due. 

T.  &  B.  Merchandise  $1049  79 

P.  C.  C.  C.  M.  Co.  "  330  00 

O.  L.  "  27  75 

[If  others  state  same  as  above.} 

There  has  been  paid  on  account  of  the  above  claims  and  of  the 
interest  thereon  the  sum  of  eleven  hundred  and  seventy-four  dol- 
lars. That  the  total  amount  thereof  now  due  and  unpaid  is  the 
sum  of  nine  thousand  six  hundred  and  ninety-four  27-100  dol- 
lars. 

That  there  are  no  legacies  nor  charges  of  administration  now 
due  or  unpaid.  That  it  would  be  to  the  advantage  of  said  estate 
to  borrow  the  sum  of  ten  thousand  dollars  secured,  to  be  repaid 
by  a  mortgage  on  the  hereinbefore  described  real  property,  for 
the  follozving  reasons,  namely; 

The  approved  claims  of  creditors  of  said  estate,  amounting  to 
about  ten  thousand  dollars,  as  hereinbefore  stated,  are  noiv  due 
and  must  speedily  be  paid  by  said  estate.  The  proceeds  of  the 
personal  property  of  said  estate  cannot  be  realised  upon  zvithin 
one  or  more  years,  and  can  then  pay  only  a  small  portion  of  said 
indebtedness  of  the  rstate.  Hence,  money  to  pay  that  indebted- 
ness must  be  procured  at  once,  either  by  a  sale  of  said  real  prop- 
erty or  by  a  loan  secured  by  mortgage  on  it.  But  the  real  estate 
market  in  this  city  and  county  is  in  a  greatly  depressed  condi- 
tion, and  a  sale  of  said  real  property  at  this  time  ivould  realise, 
as  your  petitioner  is  informed  and  believes,  not  more  than  sev- 
enty-five per  cent  of  its  said  appraised  value.  In  the  judgment 
of  real  estate  dealers,  if  such  sale  be  deferred  for  two  years,  it 
would  realise  for  said  estate  a  price  equal  to,  or  exceeding,  the 
said  appraised  value;  and  your  petiti-oner  coincides  in  that  opin- 
ion. 

That  the  present  rents  of  the  said  real  property  zvill  pay  the  in- 
terest on  such  mortgage,  and  leave  a  small  surplus  to  be  applied 
to  the  support  of  the  family  of  said  deceased. 


Petition.  871 

That  the  said  deceased  left  no  will  or  testament,  and  hence,  no 
devisees  nor  legatees.  That  the  heirs  and  next  of  kin  of  said  C. 
D.,  deceased,  surviving  him  are  your  petitioner,  his  surviving 
wife,  and  their  two  children,  M.  D.,  aged  thirteen  years,  and 
F.  C.  D.,  aged  eleven  years,  both  residing  with  your  petitioner 
in  this  city  and  county. 

Your  petitioner  alleges,  therefore,  that  it  would  be  for  the  ad- 
vantage of  said  estate  to  raise  sufficient  money  by  a  mortgage  on 
said  described  real  property  of  said  estate  wherewith  to  pay  the 
said  approved  claims  and  debts  of  said  estate. 

Wherefore,  your  petitioner  prays  for  an  order  of  this  court 
authorizing,  empowering  and  directing  her,  as  the  administratrix 
of  said  estate  to  borrow  the  sum  of  ten  thousand  dollars,  or  such 
lesser  sum  as  shall  to  the  court  appear  necessary  wherewith  to 
pay  the  debts  of  said  estate,  for  a  period  of  not  less  than  tzvo 
\ears,  at  a  rate  of  interest  not  exceeding  eight  per  cent  per 
annum,  payable  monthly  during  said  period,  and  to  mortgage 
to  the  lender  of  such  money  to  secure  to  him  the  repayment  of 
such  loan,  the  hereinbefore  described  real  property  of  said  de- 
ceased and  of  his  said  estate,  and  that  in  said  mortgage  she  be 
permitted  to  make  such  covenants  as  are  usually  in  such  instru- 
ments contained  and  not  contrary  to  the  provisions  of  law  in  this 
regard. 

Verified. 

NOTE. — In  California  to  obtain  an  order  to  mortgage  realty: 
The  executor,  administrator,  guardian  of  any  minor,  or  incompetent 
person,  or  any  person  interested  in  the  estates  of  such  decedents,  minors, 
or  incompetent  persons  may  file  a  verified  petition,  showing:  1.  The  par- 
ticular purpose  or  purposes  for  which  it  is  proposed  to  make  the  mort- 
gage, which  shall  be  either  to  pay  the  debts,  legacies,  or  charges 
of  administration,  or  to  pay,  reduce,  extend,  or  renew  some  lien  or 
mortgage  already  subsisting  in  [on]  said  realty,  or  some  part  thereof; 
2.  A  statement  of  the  debts,  legacies,  charges  of  administration,  liens, 
or  mortgages,  to  be  paid,  reduced,  extended,  or  renewed,  as  the  case 
may  be;  3.  The  advantage  that  may  accrue  to  the  estate  from  raising 
the  required  money  by  mortgage,  or  providing  for  the  payment,  reduc- 
tion, extension,  or  renewal,  of  the  subsisting  liens,  or  mortgages,  as  the 
case  may  be;  4.  The  amount  to  be  raised,  with  a  general  description 
of  the  property  proposed  to  be  mortgaged;  and  5.  The  names  of  the 
legatees  and  devisees,  if  any,  and  of  the  heirs  of  the  deceased,  or  of 
the  minor,  or  of  the  incompetent  person,  as  the  cpse  may  be,  so  far  as 
known  to  the  petitioner:  Cal.  C.  C.  P.,  sees.  1577,  1578.  See  Order. 
See,  also.  Mortgage  Order  of  Court.  Arizona.  C.  C.  pars.  1S16-1S23;  ^fon- 
tana.  C.  C.  P.,  sec.  2641;  New  Mexico,  Comp.  Laws,  sees.  19.'?5-2r)f)4;  North 
Dakota.  Probate  Code,  sees.  6454,  6455;  Oregon,  Codes  and  Statutes,  sec 
1105;  South  Dakota,  Probate  Code,  sees.  240,  241;  Utnh,  Rev.  Stats.,  sees. 
3908,  3909;   Washington,  Ballinger's   Codes,   sec.    6265. 

No.   1493. — Petition — Church  to  Mortgage. 
[Title  of  Court  and  Cause.] 

To  the  Honorable,  the  Superior  Court  of  the  City  and  County  of 
San  Francisco,  State  of  California: 


872  New  Book  of  Forms. 

Your  petitioners,  "The  Trustees  of  the  Narrow  Path  Church, 
of  tlie  City  and  County  of  San  Francisco,"  in  the  said  state  of 
California,  respectfully  represent :  That  they  are  a  religious  cor- 
poration, duly  incorporated  according  to  the  provisions  of  the 
laws  of  this  state,  under  the  corporate  name  of  "The  Trustees  of 
the  Narrow  Path  Church,  of  the  City  and  County  of  San  Fran- 
cisco." 

That  they  are  seised  and  possessed,  as  such  trustees  as  afore- 
said, of  certain  real  estate  situated  in  said  city  and  county  of  San 
Francisco,  bounded  and  described  as  follows,  viz.:  [Description.] 

That  P.  D.  S.,  J.  L.  J.  and  J.  B.,  are  the  present  trustees  of 
said  church,  and  compose  said  corporation ;  and  that  P.  D.  S. 
is  president,  and  /.  L.  J.,  secretary  of  said  board  of  trustees. 

That  there  is  erected  and  now  standing  and  being  upon  said 
lot,  a  large  and  valuable  building,  used  by  said  church,  and  the 
congregation  connected  therewith,  for  stated  meetings  for  reli- 
gious worship. 

That  the  said  corporation  is  now  indebted  in  the  sum  of  about 
iive  thousand  dollars,  wdiich  indebtedness  has  been  contracted  for 
the  improvement  of  said  property  and  the  benefit  of  said  church 
and  congregation. 

That  the  immediate  necessities  of  said  church  and  corporation 
require  that  said  trustees  should  have  at  their  disposal,  for  the 
meeting  of  the  necessities  of  said  church  and  congregation,  the 
sum  of  five  thousand  dollars. 

That  they  have  no  money  whatever  on  hand  belonging  to  said 
corporation. 

That  the  current  receipts  are  about  suflficient  to  meet  the  cur- 
rent expenses  of  said  church,  and  the  interest  on  the  sum  of  five 
tliousand  dollars,  at  the  rate  of  one  per  cent  per  month. 

That  they  can  procure  the  said  sum  of  five  thousand  dollars 
for  the  period  of  one  year,  with  the  privilege  of  continuing  the 
same  for  two  years,  at  the  rate  of  one  per  cent  per  month  in- 
terest, and  that  your  petitioners  are  unable  to  obtain  the  same 
at  any  less  rate  of  interest,  or  on  any  more  favorable  terms  than 
above  named. 

That  at  a  meeting  of  the  said  church  and  congregation,  held  at 
the  meeting-house  of  said  church,  on  the  tivcnty-third  day  of  Sep- 
tember, igo6,  a  resolution  was  adopted  by  a  imanimous  vote  of 
the  members  present,  directing  your  petitioners  to  efifect  a  loan 
not  exceeding  five  thousand  dollars,  for  the  purposes  above 
named.  That  said  meeting  at  which  said  resolution  was  adopted 
was  duly  called,  and  notice  thereof  given  from  the  pulpit  on  the 
preceding  Sabbath  for  that  special  purpose. 


Petition.  S'J;^ 

And  that  it  would  be  for  the  benefit,  interest  and  advantaf:^e 
of  said  church  and  coni^regation  that  said  loan  should  be  made, 
and  said  note  and  mortgage  executed. 

Wherefore,  your  petitioners  pray  that  an  order  may  be  made 
by  this  court  for  the  mortgaging  of  said  real  estate  to  secure  the 
payment  of  such  loan,  not  exceeding  fiir  thousand  dollars,  as 
said  corporation  can  effect  for  the  period  of  one  year  or  longer, 
not  exceeding  two  years,  at  a  rate  of  interest  not  exceeding  one 
per  cent  per  month;  and  also  allowing  said  corporation  trustees 
as  aforesaid  to  make  and  deliver  with  said  mortgage  a  promis- 
sory note,  under  the  corporate  seal  and  in  the  corporate  name 
of  said  corporation,  for  the  said  sum  so  obtained  as  aforesaid, 
to  any  person  furnishing  said  sum  of  money  as  aforesaid. 

NOTE. — In  California  any  number  of  persons  may  incorporate  for 
any  purpose,  where  pecuniary  profit  is  not  their  object,  and  for  which 
individuals  may  lawfully  associate  themselves.  (This  note  refers  ouly 
to  what  is  known  as  religious  corporations  and  corporations  not  organ- 
ized for  profit.) 

Corporations  of  this  character  may  mortgage  or  sell  real  property  held 
bj-  them,  upon  obtaining  an  order  for  that  purpose  from  the  superior  court 
held  in  the  county  in  which  the  property  is  situated.  Before  making 
the  order,  proof  must  be  made  to  the  satisfaction  of  the  court  that 
notice  of  the  application  for  leave  to  mortgage  or  sell  has  been  given 
by  publication  in  such  mnnner  and  for  such  time  as  the  court  or  the 
judge  has  directed,  and  that  it  is  to  the  interest  of  the  corporation  that 
leave  should  be  granted  as  prayed  for.  The  application  must  be  made 
by  petition,  and  any  member  of  the  corporation  may  onpose  the  grant- 
ing of  the  order  bv  affidavit  or  otherwise:  C.  C,  sees.  593-598;  Arizona, 
G.  C,  par.  894;  Idaho,  C.  C,  sees.  2275-2288;  Montana.  C.  C,  sees.  SCn.-?- 
8fi05;  Nevadn,  Comp.  Laws,  sec.  894;  New  Mexico,  Comp.  Laws.  sec. 
400:  North  Dakota,  C.  C,  sec.  3174;  Oregon,  Codes  and  Statutes,  sec. 
5186;  South  Pnkota,  C.  C,  sec.  757;  Utah,  "Rev.  Sfats..  sees.  346,  347; 
Washington,  Ballinger's  Codes,  sec.  4434;  Wvoming,  Rev.  S'iats.,  sec. 
3238-3245. 


No.   1494. — Petition  to  Lease  Realty  by  Executor,  Adminis- 
trator or  Guardian. 

[Title  of  Court  and  Estate.] 

The  petition  of  E.  D.  states  that  she  is  the  administratrix  of 
the  estate  of  C.  D.,  deceased. 

That  said  estate  is  the  owner  of  the  certain  house  and  lot  in 
said  city  and  county  described  as  follows:   [Description.] 

That  said  property  is  community  property  of  deceased  and  your 
petitioner,  his  surviving  wife.  That  the  time  for  presenting 
claims  against  said  estate  has  expired,  and  there  is  enough  money 
in  the  hand  of  the  administratrix  sufficient  to  pay  the  family  al- 
lowance, the  expenses  of  administration  and  all  claims  against 
the  estate. 


874  New  Book  of  Forms. 

That  said  property  will  be  distributed  to  petitioner  and  her  and 
deceased's  son,  B.,  aged  i6  years,  he  being  their  only  child  and 
only  heir  at  law  of  deceased. 

That  G.  H.  has  made  an  offer  to  lease  said  property  durin<^  the 
minority  of  said  child  at  a  rental  of  $200  a  month,  and  petitioner 
is  informed  and  believes  that  the  offer  is  advantageous  to  said 
estate,  and  petitioner  is  advised  that  if  said  lease  is  executed  be- 
fore said  property  is  distributed  that  the  lessee  will  hold  good 
for  the  time  stated  in  the  lease.  The  rents  are  to  be  paid  on  the 
first  day  of  every  month  in  advance ;  and  all  improvements  made 
by  the  lessee  to  become  the  property  of  tlie  lessors  and  the  lease 
is  not  to  be  sublet  nor  assigned. 

Wherefore,  etc. 

NOTE. — California,  C.  C.  P.,  sec.  1579. 


No.   1495. — Petition — Surviving  Partner  to  Render  Account. 
[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  of  the  City  and  County  of 
San  Francisco,  State  of  California: 

H.  J.,  administrator  of  the  estate  of  W.  B.,  deceased,  respect- 
fully shows: 

That  at  the  time  of  the  death  of  said  deceased,  to  wit,  on  Janu- 
ary 2,  1906,  there  was  a  partnership  between  deceased  and  S.  B., 
composing  the  late  firm  of  B.  &  B.,  and  doing  business  as  grocers 
under  said  name  and  style  at  ^ibq  Valencia  street,  in  said  city 
and  county. 

That  said  surviving  partner  continued,  and  still  is,  in  posses- 
sion of  the  effects  of  the  said  partnership  for  the  purpose  of  set- 
tling the  business. 

That  the  interest  of  the  said  deceased,  to  wit,  one-half  of  the 
assets  of  said  partnership,  was  included  in  the  inventory  here- 
tofore made  and  returned  by  said  administrator  to  this  court, 
and  was  appraised  as  other  property,  the  appraised  value  thereof 
being  the  sum  of  $^,167.97. 

That  the  said  surviving  partner  has  delayed  and  is  delaying 
the  settling  of  the  affairs  of  said  partnership,  more  than  one  year 
having  elapsed  since  the  said  inventory  has  been  filed ;  and  has 
not  accounted  with  the  said  administrator,  though  often  requested 
so  to  do,  but  has  refused,  and  still  refuses,  to  account  with  said 
administrator,  or  to  give  any  information  as  to  the  condition  of 
the  affairs  of  said  partnership;  and  has  never  paid  over  any 
such  balances  as  may,  from  time  to  time,  have  been  payable  to 


Petition.  875 

said  administrator  on  account  of  said  estate  [or  said  partner  has 
promised  to  account,  hut  has,  and  still  does,  neglect  to  render  said 
account]. 

Tiiat  there  are  many  debts  outstanding  against  said  deceased, 
and  that  it  has  become  necessary  to  ascertain  the  value  of  said 
partnership  interest  in  order  to  determine  the  necessity  of  selHnj^ 
real  estate  to  pay  said  debts,  and  the  debts,  expenses,  and  charges 
of  the  administration. 

Wherefore,  said  administrator  applies  to  this  court  for  an  order 
that  the  said  surviving  partner  render  an  account  of  the  said  part- 
nership, showing  a  full  statement  of  its  affairs  at  the  time  of 
the  death  of  said  deceased,  and  the  condition  thereof  from  that 
time  until  the  day  of  rendering  said  account,  and  for  such  other 
or  further  order  as  may  be  meet  in  the  premises. 

NOTE. — In  California,  upon  the  petition  [application]  of  the  execa- 
tor  or  administrator,  the  court  may  order  a  surviving  partner  of  the 
deceased  to  render  an  account  and  may  enforce  the  order  by  contempt 
prjceedings  [attachment]:  Cal.  C.  C.  P.,  sec.  1585.  [For  attachment, 
see  Contempt  Proceedings  Superior  Court.]  Alaska,  Codes,  pt.  4,  c.  81, 
sees.  790-796;  Arizona,  C.  C,  par.  1S29;  Idaho,  C.  C.  P.,  sec.  4216;  Mon- 
tana, C.  C.  P.,  sec.  2734;  Nevada,  Comp.  Laws, 'sec.  2954;  New  Mexico, 
Comp.  Laws,  sees.  1935-2094;  North  Dakota,  Probate  Code,  sees.  6377, 
6383;  Oregon,  Codes  and  Statutes,  sees.  1130,  1132;  South  Dakota,  Pro- 
bate Code,  sec.  246;  Utah,  Rev.  Stats.,  sec.  3918;  Washington,  Bal- 
linger's    Codes,    sees.    6190,    6192;    Wyoming    Eev,    Stats.,    sec.    4697. 


No.  1496. — Petition  for  an  Order  Directing  Executor  to  Con- 
vey Land  Under  a  Contract  with  Deceased. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the    Superior  Court  of  the  City  and  County 
of  San  Francisco,  State  of  California: 
The  petition  of  M.  O'K.  respectfully  represents : 
That  5*.  D.,  on  the  4th  day  of  December,  ipo^,  executed  and 
delivered  to  these  petitioners  a  contract  in  writing  wherein  and 
whereby  he  agreed  to  sell  and  convey  to  your  petitioners  for  the 
sum  of  $630,  that  certain  real  property  situate  in  the  city  and 
county  of  San  Francisco,  state  of  California,  described  as  follows, 
to  wit:   [Description.] 

That  there  has  been  paid  on  account  of  said  purchase  price  and 
interest  the  sum  of  $44P,  and  on  May  24,  1904,  there  was  the  sum 
of  $201  owing  on  said  contract  of  purchase,  and  by  the  terms  of 
said  contract  your  petitioners  were  entitled  to  pay  said  amount 
at  the  rate  of  ten  dollars  per  month,  together  with  interest  at  six 
per  cent  per  annum,  and  were  also  entitled  to  pay  the  total  amount 


SyS  New  Book  of  Forms. 

owing  on  said  purchase  price  at  any  time  they  might  elect  to  do 
so.  and  thereupon  to  receive  a  deed  for  said  real  property. 

That  said  S.  D.  died  on  the  ^th  day  of  April,  1904,  and  after 
proceedings  duly  had  therefor  the  will  of  said  decedent  was  ad- 
mitted to  probate  in  this  court,  and  /.  C.  R.  has  been  appointed 
executor  of  said  will,  and  letters  testamentary  duly  issued  to  him, 
and  he  is  now  the  duly  qualified  and  acting  executor  of  said  will. 

That  your  petitioner  is  ready  and  willing  and  desires  to  pay 
in  full  the  balance  owing  on  said  contract  of  purchase  hereinbe- 
fore described,  and  is  entitled  to  a  conveyance  of  said  real  prop- 
erty from  said  executor,  as  provided  for  in  sections  1597,  1598, 
1599,  1600  and  1601  of  the  Code  of  Civil  Procedure  of  the  State 
of  California. 

Wherefore  your  petitioner  prays  that  this  petition  be  set  for 
hearing,  and  due  notice  thereof  given,  and  that  on  the  hearing 
thereof  a  decree  be  entered  authorizing  and  directing  the  said 
executor  to  execute  a  conveyance  of  said  property  to  said  peti- 
tioner upon  said  payment  of  said  sum  of  $201,  together  with  in- 
terest of  said  sum  from  May  24,  1904,  at  the  rate  of  six  per  cent 
per  annum,  and  that  the  court  make  such  other  order  in  the  prem- 
ises as  may  be  proper. 

NOTE.— California,  C.  C.  P.,  sees.  1597-1607;  Arizona,  C.  C,  par.  1719; 
Ulalio,  C.  C.  P.,  sec.  4113;  Montana,  C.  C.  P.,  sec.  2559;  Nevada,  Comp. 
Laws,  sec.  2879;  New  Mexico,  Comp.  Laws,  sees.  1935-2094;  North  Da- 
kota, Probate  Code,  sees.  6456-6459;  Oregon,  Codes  and  Statutes,  sec. 
1147;  South  Dakota,  Probate  Code,  sees.  254-264;  Utah,  Eev.  Stats.,  sec. 
.3912;  Washington,  Ballinger's  Codes,  sec.  6200;  Wyoming,  Rev.  Stats., 
sec.  4688. 


No.    1497. — Petition  for    Order  Directing    Administrator    to 
Convey   Land — Objections   to. 

[Title  of  Court  and  Estate.] 

Now  comes  A.  B.,  an  heir  at  law  of  said  deceased,  and  object- 
ing to  the  petition  of  C.  D.  for  an  order  directing  the  administra- 
tor of  the  estate  of  E.  F.,  deceased,  to  convey  to  him  the  land  de- 
scribed in  his  petition,  for  cause  of  contest  alleges  the  fact  to  be 
that  the  alleged  written  contract  to  convey  was  not  binding  upon 
said  deceased,  because  said  alleged  contract  was  not  signed  by< 
f/ic  said  deceased,  but  his  name  was  zvritten  to  it  by  one  F.  G.  //., 
and  then  marked  by  the  mark  of  the  said  deceased,  and  the  only 
ivitness  to  tliat  signature  of  said  deceased  zvas  the  said  G.  H. 

NOTE. — Any  interested  person  may  appear  and  by  written  objectiona 
contest  such  petition:  Cal.    C.  C.  P.,  sec.  1599. 

Section  17,  Code  of  Civil  Procedure,  provides  that  when  a  signature 
is  by   "mark,"   in   ordrr   that   the  same   may  be   acknowledged   or  may 


Petitioj^.  877 

serve  as  a  signature  to  any  sworn  statements,  it  must  be  witnessed  by 
two  persons  who  must  subscribe  their  own  names  as  witnesses  thereto. 
It  is  not  certain  that  such  objection  would  be  good  to  a  petition  for 
an  order  directing  an  administrator  to  make  the  conveyance  prayed 
for  because  his  acknowledgment  would  ertitle  the  conveyance  to  be 
recorded:  Arizona,  C.  C,  par.  183.S;  Idaho,  C.  C.  P.,  sec.  4220;  Montana, 
C.  C.  P.,  sec.  2752;  New  Mexico,  Comp.  Laws,  sees.  19.35-2094;  North  Da- 
kota, Probate  Code,  sees.  6456-fi459;  South  Dakota,  Probate  Code,  sees. 
254-264;  Washington,  Ballinger's  Codes,  sec.  6383;  Wyoming,  Rev.  Stats., 
sec.  4819. 


No.   1498. — Petition  for  Citation  by   Creditor — Administrator 

to  Account. 

[Title  of  Court  and  Estate.] 

The  petition  of  A.  B.  represents  to  the  court  that,  she  is  the 
widow  of  said  deceased,  and  that  the  time  for  presenting-  claims 
against  said  estate  expired  on  June  j,  1905,  and  more  than  one 
year  has  expired  without  an  account  having-  been  rendered  by  C. 
D.,  administrator  of  said  estate,  wherefore  she  requests  the  court 
to  cite  said  administrator  to  render  an  account  of  his  adminis- 
tration. 

NOTE.— California,   C.   C.   P.,   sec.    1624;    Alaska,   Codes,   pt.   4,   c.   86,   '' 
sees.  859-S71;  Arizona,  C.  C,  par.  1856;  Idaho,  C.  C.  P.,  sec.  4244;  Mon-    'i 
tana,  C.  C.  P.,  sec.  2782;  New  Mexico,  Comp.  Laws,  sees.  1935-2094;  North 
Dakota,   Probate    Code,    sees.    6486-6489;    South    Dakota,    Probate    Code, 
sees.  265-290,  301;   Washington,  Ballinger's  Codes,  sec.   6317;   Wyoming, 
Rev.  Stats.,  sec.  4714. 


No.   1499. — Petition  that  Court  may  Order  Administrator  to 
Render    an    Account. 

[Title  of  Court  and  Estate.] 

The  petition  of  A.  B.  shows  that  he  is  a  creditor  of  the  above- 
entitled  estate,  and  that  his  claim  for  $1,000  has  been  presented 
to  said  administrator  and  has  been  approved  by  him  and  also  by 
this  court,  but  has  never  been  paid.  That  the  first  account  cf 
said  administrator  made  after  the  expiration  of  the  time  for  the 
presentation  of  claims  against  said  estate  showed  that  he  had  on 
deposit  in  the  C.  D.  B.  trust  Company  funds  sufficient  to  pay  all 
the  debts  of  said  estate  and  all  expenses  of  administration.  That 
since  said  account  was  filed  petitioner  has  been  informed  and  he 
believes  that  said  administrator  has  withdrawn  said  funds  from 
said  trust  company  and  used  more  than  thirty  per  cent  of  said 
funds  in  purchasing  wheat  in  open  market  for  his  own  account, 
and  has  sustained  a  great  loss. 


8/8  New  Book  of  Forms. 

Wherefore  petitioner  prays  that  the  court  will  order  a  citation 
to  issue  to  said  administrator  requiring  him  to  appear  and  render 
an  exhibit,  showing  the  amount  of  money  received  and  expended 
by  him  and  all  other  matters  to  show  the  condition  of  the  affairs 
of  said  estate. 

NOTE. — When  such  order  is  made  and  the  administrator  appears,  he 
may  be  examined,  and  if  he  has  been  guilty  as  charged  his  letters  must 
be  revoked:  Cal.  C.  C.  P.,  sec.  1626;  Alaska,  Codes,  pt.  4,  e.  86,  sees. 
B59-871;  Arizona,  C.  C,  par.  1858;  Idaho,  C.  C.  P.,  sec.  4246;  Montana, 
C.  C.  P.,  sec.  2784;  Nevada,  Comp.  Laws,  sec.  2974;  New  Mexico,  Comp. 
Laws.  sees.  19,35-2094;  North  Dakota.  Probate  Code,  sees.  6486-6489; 
Oregon,  Codes  and  Statutes,  sec.  1203;  South  Dakota.  Probate  Code,  sees. 
265-290.  301;  Washington,  Ballinger's  Codes,  sec.  6319;  W3-oming,  Eev. 
Stats.,  sec.  4716. 


No.  1500. — Petition  of  Administrator  with  the  Will  Annexed 
for   Citation   Ordering   Former   Executor   to   Account. 

[Title  of  Court  and  Estate.] 

This  court  having  revoked  its  appointment  of  A.  B.,  as  execu- 
tor of  the  last  will  of  C.  D.,  deceased,  petitioner,  the  administra- 
tor, with  the  will  annexed,  of  said  estate,  petitions  the  court  for  a 
citation  commanding  the  said  A.  B.  to  render,  within  ten  davs 
from  the  service  of  said  citation,  a  full  account  and  report  of  his 
administration. 

NOTE.— California,  C.  C.  P.,  sec.  1629;  Alaska,  Codes,  pt.  4,  e.  86, 
sees.  859-871;  Arizona,  C.  C,  par.  1863;  Idaho,  C.  C.  P..  sec.  4249;  Mon- 
tana, C.  C.  P.,  sec.  2787;  Nevada,  Comp.  Laws,  sec.  2079;  New  Mexico, 
Comp.  Laws,  sees.  1935-2094;  North  Dakota,  Probate  Code,  sees.  6362- 
6371,  6486-6489;  South  Dakota,  Probate  Code,  sees.  265-290,  301;  Wash- 
ington, Ballinger's  Codes,  sec.  6322;  Wyoming,  Rev.  Stats.,  sec.  4719. 


No.  1 50 1. — Petition  for  an  Order  Directing  Executor  to  Invest 
Funds  of  an  Estate  in  State  Securities. 

[Title  of  Court  and  Estate.] 

The  petition  of  A.  B.  states  that  she  is  the  widow  of  the  C.  B., 
deceased.  That  £.  P.,  the  executor  of  the  last  will  of  deceased, 
has  in  his  possession  $100,000  of  the  moneys  of  said  estate  on 
general  deposit  in  The  People's  Home  Bank,  without  interest. 
That  it  is  for  the  best  interest  of  said  estate  that  said  monev  be 
invested  in  safe  marketable  securities.  [The  said  estate  having 
no  creditors  and  there  being  enough  rents  and  interest  becoming 
due  it  is  unnecessary  for  said  executor  to  reserve  any  money  for 
the  expenses  of  the  estate,  costs,  legacies  or  for  any  other  pur- 
pose. 


PEnriTION,  879 

Wherefore  petitioner  prays  for  an  order  directing  said  execu- 
^  tor  to  invest  said  $100,000  in  securities  of  the  state  of  California. 

NOTE. — Under  such  circumstances  the  court  may  order  such  invest- 
m?nt  or  in  United  States  bonds:  Cal.  C.  C.  P.,  sec.  1640;  Arizona,  C. 
C.,  par.  1874;  Idaho,  C.  C.  P.,  sec.  422.3;  Montana,  C.  C.  P.,  sec.  2798; 
New  Mexico,  Comp.  Laws,  sees.  19.'?.5-2094;  North  Dakota,  Probate  Code, 
sec  6503;  South  Dakota,  Probate  Code,  see.  290;  Utah,  Rev.  Stats.,  sec. 
3925. 


No.   1502. — Petition — Partial  Distribution  for. 
[Title  of  Court  and  Estate.] 

The  petition  of  /.  B.,  a  resident  of  Downieville,  in  the  county 
of  Sierra,  state  of  California,  shows: 

That  he,  the  said  /.  B.,  is  a  brother  and  heir  to  the  estate  of 
the  said  deceased,  late  of  said  county  of  Sierra,  who  died  on  the 
tenth  day  of  January,  1904,  and  having  no  surviving  wife  and  no 
issue. 

And  your  petitioner  further  shows,  that  H.  S.,  of  said  county, 
is  administrator  of  said  estate,  the  total  value  whereof,  as  appears 
bv  the  inventory  and  appraisement  thereof  on  file  in  said  court, 
amounts  to  the  sum  of  $9,763,  and  that  more  than  four  movfhs 
have  elapsed  since  the  issuing  of  letters  of  administration  on  said 
estate  to  the  said  H.  S.,  and  that,  as  your  petitioner  is  informed 
and  believes,  there  are  no  claims  outstanding  against  said  estate 
[or  state  the  amount  of  claims]. 

Wherefore,  your  petitioner  prays  for  an  order  of  distribution  of 
the  said  estate,  and  that  the  share  of  said  estate  of  which  he  is 
entitled,  to  wit.  all  the  property  and  funds  belonging  to  the  same, 
remaining  in  the  hands  of  the  said  administrator  after  payment 
of  the  costs  and  expenses  of  administration,  may  be  given  to  the 
petitioner  upon  the  execution  and  delivery  to  the  said  adminis- 
trator of  the  indemnity  bond  in  such  cases  by  law  required,  and 
for  such  other  and  further  order  and  relief  in  the  premises  as  may 
be  just. 

And  your  petitioner  will  ever  pray,  etc. 

NOTE. — In  California,  after  the  lapse  of  four  months  from  the  issuing 
of  letters,  any  heir,  devisee,  or  leg^atee  may  petition  the  court  for  the 
legacy  or  share  of  the  estate  to  which  he  is  entitled,  to  be  ^ven  to 
him  upon  his  giving  bonds,  with  scurity,  for  the  payment  of  his  pro- 
portion of  the  debts  of  the  estate:  Cal.  C.  C.  P..  sec.  1658 ;  Alaska 
Codes,  pt.  4.  c.  87,  sees.  872-886;  Arizona,  C.  C.  par.  1886;  Idaho,  C.  C, 
P.,  sec.  4270;  Montana,  C.  C.  P.,  sec.  28"0;  Nevada.  Comp.  Laws,  sec 
2993;  New  Mexico,  Comp.  Laws,  sees.  19.3.'i-2094;  North  Dakota.  Pro 
bate  Code,  sees.  6.504-6508;  Oregon.  Codes  and  Statutes,  sec.  1222;  South 
DrkotR.  Probate  Code,  sees.  302-.'^06;  T^tah,  Rev.  Stats.,  sec.  2948;  Wash- 
ington, Ballingcr's  Codes,  sec.  6347;  Wyoming,  Rev.  Stats.,  sec.  4826. 


88o  New  Book  of  Forms. 


No.  1503. — Petition  of  Heir,  Devisee  or  Legatee  for  His  Share 

of  Estate. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  in  and  for  the  County  of 
Alameda,  State  of  CaHfornia: 

Your  petitioner,  A.  B.,  states  that  he  is  a  legatee  under  the  last 
will  of  S.  D.,  deceased.  That  letters  testamentary  upon  the  said 
last  will  were  issued  to  /.  C.  R.  on  June  i^,  1904,  who  qualified 
and  he  is  now  the  qualified  and  acting  executor  of  said  will.  That 
petitioner's  legacy  is  $10,000.  That  more  than  four  months  have 
elapsed  since  said  letters  were  issued.  That  said  estate  is  but  little 
indebted,  and  the  said  $10,000  may  be  allowed  to  petitioner  with- 
out loss  to  the  creditors  of  the  estate. 

Wherefore,  petitioner  prays  that  he  may  be  paid  his  said  share 
and  that  the  court  will  cause  notice  to  be  given  of  his  application. 

NOTE. — When  the  facts  are  as  above  stated,  notice  must  be  given 
of  the  application  as  is  required  upon  settlement  of  an  account,  and  the 
court  "must"  make  an  order. in  conformity  with  the  prayer  of  the  ap- 
plicant. The  applicant  must  give  a  bond  in  the  amount  as  ordered  by 
the  court  for  the  payment  of  his  share  of  the  debts  of  the  estate.  The 
executor  or  any  interested  person  may  appear  and  resist  the  application: 
Cal.  C.  C.  P.,  sees.  1658-1661;  Alaska,  Codes,  pt.  4,  c.  87,  sees.  872-886; 
Arizona,  C.  C,  par.  1886;  Idaho,  C.  C,  sec.  4270;  Montana,  C.  C,  sec. 
2830;  Nevada,  Comp.  Laws,  sec.  2993;  New  Mexico,  Comp.  Laws,  sees. 
1935-2094;  North  Dakota,  Probate  Code,  sees.  6504-6508;  Oregon,  Codes 
and  Statutes,  sec.  1222;  South  Dakota,  Probate  Code,  sees.  302-306,  Utah, 
Eev.  Stats.,  sec.  2948 :  Washington,  Ballinger  's  Codes,  sec.  6347 ;  Wyom- 
ing, Bev.  Stats.,  sec,  4826. 


No.  1504. — Petition  of  Heir  at  Law  for  His  Portion  of  an  Es- 
tate. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  in  and  for  the  City  and 
County  of  San  Francisco,  State  of  California: 

The  petition  of  M.  S.  states  that  she  is  an  heir  at  law  under  the 
last  will  of  S.  D.,  deceased.  That  letters  testamentary  were  on  the 
i^th  day  of  June,  1904,  issued  to  /.  C.  R.,  who  qualified  and  he  is 
now  the  qualified  and  acting  executor  of  said  will.  That  the  as- 
sets of  said  estate  amount  to  over  $1,800,000.  That  all  its  debts 
have  been  paid  except  about  $g,ooo.  That  petitioner's  share  of 
said  estate  under  the  said  will  is  one-third.  That  a  paper  has  been 
found  and  filed  for  probate  which  is  alleged  to  be  a  codicil  of  said 
will,  and  a  contract  has  been  filed  but  its  validity  has  not  been  de- 
termined.    That  said  codicil,  if  admitted  to  probate  as  a  part  of 


Petition.  88l 

the  will  already  admitted  will  reduce  petitioner's  share  of  said 
estate  to  about  $^00,000,  and  after  all  expenses,  costs,  debts,  taxes 
and  charq-es  of  administration  are  paid,  in  any  event,  petitioner's 
share  will  amount  to  over  $400,000.  [Or,  that  all  the  property  of 
said  estate,  has  been  reduced  by  sales  to  money,  zvhich  amounts  to^ 
$1,800,000.  Or,  the  estate  consists  of  $500,000  in  m,oney  and' 
$i,SOO,ooo  in  bonds.  Or,  the  estate  consists  of  $500,000  in  money 
and  $i,joo,ooo  in  real  estate  described  in  the  inventory  and  ap- 
praisement. Or,  the  estate  consists  of  real  estate  appraised  at 
$800,000,  stocks,  $100,000,  United  States  bonds,  $300,000,  mort- 
gages, $50,000,  promissory  notes,  $50,000.] 

Wherefore,  petitioner  prays  for  an  order  directing  the  distribu- 
tion to  her  of  the  sum  of  $250,000  to  be  charged  to  her  as  a  part 
of  her  share  of  said  estate. 

NOTE.— California,  C.  C.  P.,  sees.  1658-1663.  Usually  a  bond  is  or- 
dered to  secure  the  executor  against  loss,  but  when  all  "debts  have  been 
paid  or  are  secured  by  mortgage,  and  the  court  is  satisfied  that  no  in- 
jury can  result  to  the  estate,  it  may  dispense  with  the,  bond:  Cal.  C. 
C.  P.,  see.  166.S;  Alaska,  Codes,  pt.  4,  c.  87,  sees.  872-886;  Arizona,  C. 
C,  par.  1886;  Idaho,  C.  C.  P.,  sec.  4270;  Montana,  C.  C.  P.,  sec.  2830; 
Kevada,  Comp.  Laws,  sec.  2993;  New  Mexico,  Comp.  Laws,  sees.  1935- 
2094;  North  Dakota,  Probate  Code,  sees.  6504-6508;  Oregon,  Codes  and 
Statutes,  see.  1222;  South  Dakota,  Probate  Code,  sees.  302-306;  Utah, 
Rev.  Stats.,  sec.  2948;  Washington,  BalUnger's  Codes,  see.  6347; 
Wyoming,  Eev.  Stats.,  sec.  4826. 


No.   1505. — Petition  Praying  a  Court  to  Ascertain  and  De- 
clare the  Rights  of  all  Persons  to  an  Estate. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  in  and  for  the  City  and 

County  of  San  Francisco,  State  of  California: 

The  petition  of  A.  B.  states  that  S.  D.  died  testate  in  the  city 
and  county  of  San  Francisco,  state  of  California,  on  April  5,  1904. 
That  thereafter  such  proceedings  were  had  that  on  the  13th  day  of 
June,  1904,  J.  C.  R.  was  appointed  by  said  court  executor  of  the 
last  will  of  deceased  and  on  the  said  13th  day  of  June,  he 
qualified  and  letters  testamentary  were  issued  to  him,  and  he  is 
now  the  qualified  and  acting  executor  of  said  will.  That  more 
than  one  year  has  expired  from  the  issuing  of  said  letters. 

That  petitioner  is  an  heir  at  law  of  said  deceased.  That  he  has 
been  informed  and  he  believes  that  certain  persons  who  are  not 
heirs  of  said  deceased  claim  to  be  his  heirs. 

Wherefore,  petitioner  prays  the  court  to  ascertain  and  declare 
the  rights  of  all  persons  to  said  estate,  and  all  interests  therein,  and 
to  whom  distribution  thereof  should  be  made. 
New  Forms — 56 


882  New  Book  o?  Forms. 

NOTE. — "WTien  the  petition  is  filed  the  court  will  make  an  order  di- 
recting service  of  notice  to  all  persons  interested  in  the  estate  to  ap- 
pear and  "show  cause":  Cal.  C.  C.  P.,  sec.  1664.  It  is  difBeult  to  as- 
certain what  cause  interested  persons  are  cited  to  show.  It  is  certain, 
that  a  proceeding  under  the  Code  of  Civil  Procedure  to  determine  heir- 
ship cannot  be  instituted  until  the  expiration  of  a  year  from  the  is- 
suance of  letters:  Smith  v.  Westerfield,  88  Cal.  374,  26  Pac.  206.  The 
matter  does  not  concern  an  administrator,  and  he  will  not  be  allowed  to 
litigate  the  claim  of  one  alleged  heir  against  another:  Estate  of  Oxarart, 
78  Id.  109,  20  Pac.  367. 

The  pendency  of  proceedings  to  determine  heirship  does  not  deprive 
the  court  of  jurisdiction  to  determine  the  heirship  upon  petition  for  final 
distribution:  Estate  of  Sheid,  129  Id.  172,  61  Pac.  920. 

If  an  assignee  of  an  interest  in  an  estate  petitions  for  final  distribu- 
tion, it  is  error  to  distribute  the  property  to  the  assignors:  Estate  of 
Vaughn,  92  Cal.  192,  28  Pac.  221. 

An  assignee  of  an  interest  in  an  estate  has  authority  to  receipt  for  such 
interest:  Estate  of  Phillips,  71  Id.  285,  12  Pac.  169;  but  if  an  assignee 
neglects  to  assert  bis  rights  and  have  his  interest  assigned  directly  to 
himself,  he  is  estopped  by  the  decree  of  distribution  from  asserting  title: 
Freeman  v.  Rohm,  58  Id.  110,  114;  Montana,  C.  C.  P.,  sees.  2840,  2841; 
New  Mexico,  Comp.  Laws,  sees.  1935-2094;  North  Dakota,  Probate  Code, 
sees.  6341-6345;  Utah,  Eev.  Stats.,  sees.  3981,  3982;  Wyoming,  Rev.  Stats., 
sees.  4835-4837. 


No.   1506, — Petition  of  Assignee  of  Heir  at  Law  for  Distri- 
bution of  Assignor's   Share  to  Him. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  in  and  for  the  County  of 
Butte,  State  of  California: 

Now  comes  A.  B.  and  petitioning  the  court  for  final  distribution 
of  the  above-entitled  estate,  states  the  facts  to  be :  That  the  said 
administrator's  final  account  has  been  filed.  That  a  report  by  said 
administrator  accompanying  said  account  states  that  said  estate  is 
ready  for  distribution ;  and  alleges  that  the  heirs  at  law  of  de- 
ceased are  A.  C,  a  daughter,  L.  C.  and  F.  C,  sons  of  deceased,  and 
that  he  left  surviving  no  other  heirs  at  law ;  and  now  petitioner 
states  to  the  court  that  deceased  died  the  father  of  two  daughters 
and  two  sons,  to  wit,  the  above-named  daughter  and  sons  and 
M.  C.  R.,  a  deceased  daughter.  That  said  deceased  daughter  mar- 
ried one  O.  P.  R.,  and  petitioner  is  the  only  child  of  said  M.  C.  R 
and  0.  P.  R.,  and  petitioner's  father  and  mother  are  both  dead. 

That  said  final  account  has  been  allowed  and  settled  and  said 
estate  is  now  ready  for  distribution. 

Wherefore,  petitioner  prays  that  the  share  of  said  estate  that 
would  be  distributed  to  his  mother,  were  she  living,  may  be  dis- 
tributed to  him. 

NOTE.— California,  C.  C.  P.,  sees.  1665-1668;  Alaska,  Codes,  pt.  4, 
♦•.  87,  sees.  872,  886;  Arizona,  C.  C,  par.  1896;  Idaho,  C.  C.  P.,  sees.  4275- 


Petition.  883 

4277;  Montana,  C.  C.  P.,  sees.  2843-2845;  Novarla,  Comp.  Laws,  sees, 
3001,  3002;  New  Mexico,  Comp.  Laws,  sees.  1935-2094;  North  Dakota, 
Probate  Code,  sees.  6504,  6515,  6516;  South  Dakota,  Probate  Code,  sees. 
310,  315;  Utah,  Kev.  Stats.,  sees.  3953,  3954;  Washington,  Ballinger's 
Codes,  sec.  6355. 


No.   1507. — Petition — Distribution  for. 
[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  said  Superior  Court  of  the  City  and  County 
of  San  Francisco,  State  of  California: 

The  petition  of  M.  /.,  the  administratrix  of  the  estate  of  T.  J., 
deceased,  respectfully  shows : 

That  your  petitioner  7vas  appointed  such  administratrix  by  the 
order  of  this  court  on  the  fifteenth  day  of  May.  190^,  and  on  the 
sixteenth  dav  of  May,  1906,  she  duly  qualified  as  such  administra- 
trix, and  thereupon  entered  upon  the  administration  of  the  estate 
of  said  deceased,  and  has  ever  since  continued  to  administer  said 
estate. 

That  on  the  third  day  of  June,  IQOJ,  your  petitioner  duly  made 
and  returned  to  this  court  a  true  inventory  and  appraisement  of 
all  the  estate  of  said  deceased  which  had  come  to  her  possession 
or  knowledge. 

That  on  the  seventeenth  day  of  May,  IQO^,  your  petitioner  duly 
published  notice  to  creditors  to  present  their  claims  against  the 
said  deceased,  in  the  manner  and  for  the  period  prescribed  by  this 
court. 

That  more  than  one  year  has  elapsed  since  the  appointment  of 
vour  petitioner  as  such  administratrix,  and  more  than  ten  months 
have  expired  since  the  first  publication  of  said  notice  to  creditors. 

That  on  the  sixteenth  day  of  June,  IQ04,  your  petitioner  filed 
her  accounts  as  such  administratrix,  which  said  accounts,  after 
due  hearing  and  examination,  were  finally  settled. 

That  all  the  debts  of  said  deceased  and  of  said  estate,  and  all 
the  expenses  of  the  administration  thereof  thus  far  incurred,  and 
all  taxes  that  have  attached  to  or  accrued  against  the  said  estate, 
have  been  paid  and  discharged,  and  said  estate  is  now  in  a  con- 
dition to  be  closed. 

That  the  residue  of  the  said  estate  now  remaining  in  the  hands 
of  vour  petitioner  is  fully  set  forth  and  described  in  the  schedule 
marked  "A,"  hereunto  annexed  and  made  a  part  of  this  petition. 

That  the  whole  of  said  estate  is  common  property,  it  having 
been  acquired  by  said  deceased  after  his  marriage  to  your  pe- 
titioner. 

That  the  said  T.  /.  died  intestate,  in  the  city  ofid  county  of  San 
Francisco,  on  the  seventeenth  day  of  April,  190s,  leaving  him  sur- 


884  Ni;w  Book  of  Forms. 

viving  your  petitioner,  his  widow,  now  aged  forty-one  years,  re- 
siding at  said  city  and  county;  and  J.  J.,  now  aged  twenty-four 
years,  residing  at  the  city  of  Sacramento,  W.  J.,  now  aged  nine- 
teen years,  C.  J.,  now  aged  seventeen  years,  and  E.  J.,  now  aged 
fifteen  years,  residing  zvith  your  petitioner,  at  said  city  and  county 
of  San  Francisco,  the  children  of  said  deceased  and  of  your  peti- 
tioner, and  his  only  descendants. 

That  the  said  petitioner  is  entitled  to  the  one-lialf  of  the  residue 
of  said  estate,  and  the  said  descendants  of  said  deceased  are  en- 
titled to  the  other  half  of  said  residue  of  said  estate. 

SCHEDULE  "A." 
Personal  Property: 

Cash $1,302  02 

Real  Property: 

[Here  insert  full  description.] 

Wherefore  your  petitioner  prays  that  the  administration  of  said 
estate  may  be  brought  to  a  close,  and  that  she  may  be  discharged 
from  her  trust  as  such  administratrix. 

That,  after  due  notice  given  and  proceedings  had,  the  estate  re- 
maining in  the  hands  of  your  petitioner  as  aforesaid  may  be  dis- 
tributed in  the  proportions  and  to  the  said  parties  entitled  thereto 
as  aforesaid,  to  wit,  the  one-half  of  the  said  residue  to  the  said  sur- 
viving wife,  and  the  other  half  of  the  said  descendants  of  the  said 
deceased,  or  that  such  other  or  further  order  may  be  made  as  is 
meet  in  the  premises. 

And  your  petitioner  will  ever  pray,  etc. 

NOTE. — An  executor  or  administrator  may  petition  for  distribution 
upon  the  settlement  of  his  final  account,  or  thereafter:  Cal.,  C.  C.  P., 
sec.  166.5;  Alaska,  Codes,  pt.  4,  c.  87,  sees.  872-886;  Arizona,  C.  C,  pars. 
1896-1898;  Idaho,  C.  C.  P.,  sees.  4275-4277;  Montana,  C.  C.  P.,  sees.  2843- 
284.5;  Nevada,  Comp.  Laws,  sees.  3001,  3002;  New  Mexico,  Comp.  Laws, 
sees.  193.5-2094;  North  Dakota,  Probate  Code,  sees.  6509-6516;  South 
Dakota,  Probate  Code,  sees.  302-331;  Utah,  Eev.  Stats.,  sees.  3953,  3954; 
Washington,  Ballinger's  Codes,  sec.  6355. 


No.   1508. — Petition  for  Continuation  of  Administration. 
[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  in  and  for  the  County  of 
Napa,  State  of  California: 

Now  comes  the  executor  and  all  the  legatees  and  devisees 
named  in  the  last  will  of  the  said  A.  B.,  deceased,  and  petition  the 
court  to  have  the  administration  of  the  estate  of  said  deceased 
continue  for  a  longer  period  of  time  than  that  designated  in  said 


Petition.  885 

will  for  the  reason  that  the  time  designated  in  said  will  is  June  5, 
ipo6,  and  it  will  be  injurious  to  the  said  estate  and  to  the  said 
beneficiaries  to  have  the  said  administration  brought  to  a  close  at 
the  date  therefor  designated. 

NOTE.— California,  C.  C,  sec.  1670. 

It  seems  that  notwithstanding  an  order  is  made  continuing  the  time 
for  settlement,  that  any  heir,  devisee  or  legatee  may  assert  his  rifjhts 
to  payment  under  Id.,  sec.  1658,  after  the  lapse  of  four  months  from  the 
issuing  of  letters;  and  the  fact  that  they  signed  the  petition  to  con- 
tinue the  time  for  closing  the  administration  does  not  estop  them  from 
insisting  upon   the   immediate   payment  of  their  share   of   the   estate. 

If  the  heirs  at  law  are  preferred  under  the  will  to  the  legatees  and 
devisees,  the  situation  would  not  be  the  same. 


No.   1509. — Petition  for  Decree  that  Homestead  is  Vested  in 
Surviving  Wife. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  of  the  County  of  Sierra, 
State  of  California: 

The  petition  of  A.  B.  C.  states  that  A.  L.  C.  and  petitioners 
were,  on  the  jrf  day  of  June,  i^oo,  husband  and  wife. 

That  on  the  said  ?rf  day  of  June  they  owned  in  common  all  that 
land  described  as  follows,  to  wit:    [Description.] 

That  on  said  jrf  day  of  June  petitioner  and  her  husband,  A.  L. 
C,  declared,  executed  and  acknowledged,  and  recorded  in  the  re- 
corder's office  of  the  said  county  of  Sierra,  in  manner  and  form  as 
is  by  law  required,  a  homestead  upon  said  property  hereinabove 
described,  and  the  said  homestead  has  never  been  conveyed  or 
abandoned  by  either  your  petitioner  or  her  said  husband. 

That  on  the  loth  day  of  June,  1905,  the  said  husband  of  peti- 
tioner died  in  said  county  of  Sierra. 

That  at  the  time  of  his  death  the  said  property  stood  of  record, 
and  now  stands  of  record  in  the  name  of  the  said  A.  L.  C. 

Wherefore,  petitioner  prays  for  a  decree  establishing  the  fact 
that  said  premises  were,  on  June  5,  ipoo,  the  community  propertv 
of  petitioner  and  her  said  husband.  That  said  homestead  was  se- 
lected and  recorded  as  by  law  required,  prior  to  the  death  of  the 
said  A.  L.  C.  on  June  10,  1905,  and  that  the  title  to  said  premises 
vested  in  petitioner  on  the  loth  day  of  Juiie,  190 j,  bv  reason  of 
the  death  of  her  husband,  the  said  A.  L.  C.  as  aforesaid. 

NOTE. — Such  petition  may  also  be  filed  by  a  purchaser  of  the  sur- 
vivor's title.  If  the  facts  are  established,  the  decree  may  be  recorded 
and  it  becomes  thereby  a  judicial  record  of  the  established  facts:  Cal. 
C.  C.  P.,  sec.   1723;   Idaho,  C.  C.  P.,  sec.  4281;   Montana,  C.   C.  P.,   sec. 


886  New  Book  of  Forms. 

2930;  New  Mexico,  Couip.  Laws,  sees.  1935-2094;  North  Dakota,  Probate 
Code,  sec.  63S9;  South  Dakota,  Probate  Code,  sees.  153-166;  Utah,  Eev. 
Stats.,  sec.  3572;  Wyoming,  Eev.  Stats.,  sec.  4556. 


No.    15 10. — Petition  by   Mentally    Incompetent  Person  to  be 
Adjudged  Mentally  Competent. 

[Title  of  Court  and  Cause.] 

To  the  Honorable,  the  Superior  Court  in  and  for  the  County  of 
Napa: 

The  petition  oi  A.  B.  states  that  on  June  3,  ipo§,  he  was,  by  the 
juds^ment  of  the  said  superior  court,  adjudged  to  be  a  mentally 
incompetent  person.  That  he  is  now  restored  to  mental  capacity 
and  competency,  and  he  prays  the  court  for  an  order  judicially 
determining  that  he  is  now  restored  to  mental  competency,  or 
capacity. 

NOTE. — The  court  appoints  a  day  for  the  hearing  before  the  court. 
The  petitioner  may  demand  a  jury.  Notice  is  given  to  the  guardian,  if 
any,  and  to  the  husband  or  wife  if  there  is  one,  and  to  the  father  or 
mother  if  living  in  the  county.  The  petition  may  be  contested:  Cal.  C. 
C.  P.,  sec.  1766.  See  Id.,  see.  1767,  for  definition  of  the  words  "in- 
competent," "mentally  incompetent"  and  "incapable":  Alaska,  Codes, 
pt.  4,  c.  88,  sees.  887-917;  Arizona,  C.  C,  par.  1987;  Idaho,  C.  C.  P.,  sec. 
4356;  Montana,  C.  C.  P.,  sec.  2973;  New  Mexico,  Comp.  Laws,  sees.  1896- 
1934;  North  Dakota,  Probate  Code,  sec.  6527;  South  Dakota,  Probate 
Code,  sec.  382;  Wyoming,  Bev.  Stats.,  sec.  4895. 


No.  151 1. — Petition — Appointment  of  Guardian, 
[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  of  the  City  and  County  of 
San  Francisco,  State  of  California: 

The  petition  of  M.  J.  respectfully  shows : 

That  your  petitioner  is  the  mother  of  W.  J.,  C.  J.  and  B.  I., 
minor  children  of  T.  J.,  late  of  said  city  and  county,  deceased. 

That  said  minors  have  no  guardian  legally  appointed  by  will, 
and  are  residents  of  said  city  and  county,  and  have  estate  within 
said  city  and  county  which  needs  the  care  and  attention  of  some 
fit  and  proper  person. 

That  said  estate  consists  partly  of  cash  and  partly  of  undivided 
interests  in  a  lot  of  land  in  said  city  and  county,  inherited  by  said 
minors  from  their  late  father,  and  lately  distributed  to  them  by  a 
decree  of  the  superior  court  of  said  city  and  county,  by  which  said 
decree  the  administratrix  of  the  estate  of  said  deceased  was  di- 
rected to  pay  and  deliver  to  the  guardian  of  said  minors  the  cash 


Petition.  887 

and  real  estate  belonging  to  them  [or  state  such  other  facts  as 
show  the  necessity  or  convenience  of  a  guardian]. 

That,  therefore,  it  is  necessary  and  convenient  that  a  guardian 
be  appointed  to  the  persons  and  estates  of  said  minors. 

That  said  IV.  J.  is  of  the  age  of  nineteen  years,  said  C.  J.  of  the 
age  of  seventeen  years,  and  E.  J.  of  the  age  of  fifteen  years ;  and 
said  minors  are,  at  present,  under  the  care  of  your  petitioner. 

That  the  only  relatives  of  the  said  minors  residing  in  said 
city  and  county  of  San  Francisco  are  F.  W.  and  H.  W.,  uncles  of 
said  minors. 

Wherefore,  your  petitioner  prays  that  your  honor  nominate  and 
[or,  if  the  minors  arc  above  the  age  of  fourteen  years,  as  in  this 
case,  and  have  nominated  their  guardian,  then  omit  the  words 
"nominate  and,"  and  say  simply]  appoint  your  petitioner,  a  fit 
and  proper  person,  or  such  other  fit  and  proper  [or  if  the^  minors 
be  above  the  age  of  fourteen  years,  omit  the  words  "Ht  and 
proper"]  person  as  said  minors  may  hereinafter  nominate  [or  if 
said  minors  are  under  fourteen  years  of  age,  then  omit  the  words 
"as  said  minors  may  hereinafter  nominate,"  and  say,  "as  to  your 
honor  may  seem  fit  and  proper"]  a  guardian  of  said  minors,  and 
that  your" honor  cause  such  notice  to  be  given  to  the  said  F.  IV. 
and  H.  W.,  as  your  honor  shall,  on  due  inquiry,  deem  reasonable.. 

And  your  petitioner  will  ever  pray,  etc. 

NOTE.— California,  C.  C.  P.,  sec.  1747;  Alaska,  Codes,  pt.  4,  c.  88, 
Bees.  887-917;  Arizona,  C.  C,  par.  1954;  Idaho,  C.  C.  P.,  sec.  4339;  Mon- 
tana, C.  C.  P.,  sec.  2950;  Nevada,  Comp.  Laws,  sees.  559,  566;  New 
Mexico,  Comp.  Laws,  sees.  1434-1477;  North  Dakota,  Probate  Code,  sec. 
6537;  Oregon,  Codes  and  Statutes,  sec.  5259;  South  Dakota,  Probate 
Code,  sec.  366;  Utah,  Rev.  Stats.,  sec.  3994;  Washington,  Ballinger's 
Codes,  sec.  6395;  Wyoming,  Bev,  Stats.,  sec.  4866. 


No.  1512. — Petition  for  Appointment  of  Guardian  for  Incom- 
petent  Person. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  of  the  City  and  County  of 
San  Francisco: 

The  petition  of  A.  D.  shows  to  the  court  that  he  is  the  oldest 
son  of  C.  D.  and  a  resident  of  said  city  and  county.  That  the  said 
C.  D.,  over  eighty  years  old,  is  an  invalid,  and  for  those  and  other 
reasons  his  mind  is  greatly  impaired,  so  that  he  is  mentally  in- 
competent to  manage  his  property  or  to  care  for  himself. 

That  he  owns  nine  houses  and  lots,  in  said  city  and  county, 
yielding  a  net  income  of  tzvelve  hundred  dollars  a  month,  and  it  is 
necessary  that  a  guardian  be  appointed  to  manage  said  property. 


888  New  Book  of  Forms. 

Wherefore  petitioner  prays  for  an  order  appointing  him  guard- 
ian of  his  father's  estate. 

NOTE. — When  a  person  is  insane  or  mentally  incompetent  to  man- 
age his  property,  a  superior  court  may,  after  five  days'  notice  of  the 
application,  appoint  a  guardian  for  him.  If  such  person  is  able  to  at- 
tend he  must  be  present  at  the  hearing:  Cal.  C.  C.  P.,  sec.  1763;  Alaska, 
Codes,  pt.  4,  c.  88,  sees.  887-917;  Arizona,  C.  C,  par.  1984;  Idaho,  C.  C. 
P.,  sec.  435'^;  Montana,  C.  C.  P.,  sec.  2970;  Nevada,  Comp.  Laws,  sec. 
572;  New  Mexico,  Comp.  Laws,  sees.  189G-1934;  North  Dakota,  Probate 
Code,  sec.  6552;  Oregon,  Codes  and  Statutes,  sees.  5267,  5270;  South 
Dakota,  Probate  Court,  sees.  379-382;  Utah,  Rev.  Stats.,  sec.  4000;  Wash- 
i:'  -Ion,  Ballinger's  Codes,  sec.  6424;  Wyoming,  Eev.  Stats.,  sees.  4879- 
4897. 


No.   15 13. — Petition  by  Guardian  for  an  Order  to  Mortgage 

Real  Estate. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  of  the  County  of  Napa: 

The  petition  of  A.  B.  states  that  he  is  the  qualified  and  acting 
guardian  of  the  estate  of  C.  D.,  a  mentally  incompetent  person. 

That  the  said  C.  D.  is  the  owner  of  that  tract  of  land  and  im- 
provements in  said  county  of  Napa,  described  as  follows,  to  wit : 
[Description.] 

That  on  June  8,  ipoo,  this  court  adjudged  the  said  C.  D.  to  be 
mentally  incompetent,  and  your  petitioner  w^s  appointed  guardian 
of  his  estate.  That  petitioner  took  charge  of  the  said  property, 
and  immediately  ascertained  that  it  was  valuable,  and  an  offer  has 
been  made  by  a  reliable  person  to  rent  it  for  a  term  of  five  years 
for  farming  purposes,  at  a  yearly  rental  of  $1,200.  That  the 
said  C.  D.  had,  during  the  years  1903,  1904,  igoj,  attempted  to 
farm  said  land  but  on  account  of  his  mental  incapacity  became  in- 
debted in  the  sum  of  $1,450,  including  taxes  on  the  land.  That 
the  creditors  of  said  C.  D.  are  pressing  petitioner  for  payment  and 
he  finds  it  impossible  to  pay  them  unless  said  land  is  sold  or  mort- 
gaged. That  petitioner  has  ascertained  that  the  said  C.  D.  (he 
having  no  family)  can  be  well  supported  on  a  net  income  of  $40 
a  month. 

That  petitioner  has  ascertained  that  he  can  borrow  $1500  at  six 
per  cent  a  year  for  a  term  of  three  years  on  mortgage  of  said  land. 
That  the  cost  of  obtaining  said  mortgage,  recording,  and  the  costs 
of  this  petition  will  be  $50.  That  the  rent  of  said  premises  for 
three  years  will  net  $3,600,  and  after  deducting  $1,440,  expended 
for  the  care  of  said  C.  D.,  there  will  remain  $2,160  to  apply  to 
the  payment  of  the  principal  of  said  mortgage  and  interest  and  a 
balance  of  $390,  which  will  be  amply  sufficient  to  meet  any  prob- 


Petition.  889 

able  deficiency  in  the  estimated  cost  of  maintenance  during  said 
three  years. 

Wherefore,  petitioner  prays  for  an  order  authorizing  him,  as 
guardian  of  the  said  C.  D.,  to  mortgage  said  property  for  the 
amount,  interest  and  purpose  in  tJiis  petition  stated. 

NOTE. — Under  the  facts  stated  the  court  has  authority  to  ^rant  the 
prayer  of  the  petition:  Cal.,  C.  C.  P.,  sec.  1770.  This  construction  puts 
stress  on  the  word  "manage"  as  used  in  the  statute:  Arizona,  C.  C, 
par.  1990;  Idaho,  C.  C.  P.,  sec.  4359;  Montana,  C.  C.  P.,  sec.  2992; 
Nevada,  Comp.  Laws,  sec.  576;  New  Mexico,  Comp.  Laws,  sees.  1935- 
2094;  North  Dakota,  Probate  Code,  sec.  6453;  Oregon,  Codes  and  Stat- 
utes, sec.  5276;  South  Dakota,  Pmhate  Code,  sees.  408-411;  Utah,  Rev. 
Stats.,  sec  4007;  Washington,  Ballinger's  Codes,  see.  6405;  Wyoming, 
Eev.  Stata^  sec  4900. 


No.  1514. — Petition  of  Guardian  that  He  may  Assent  to  Par- 
tition of  Land- 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  in  and  for  the  County  of 
Alameda:  f 

The  petition  of  A.  B.,  guardian  of  C.  D.,  a  minor,  shows  that 
said  minor  is  the  owner  in  fee  of  an  undivided  one-third  of  all 
that  tract  of  land  described  as  follows,  to  wit:  [Description.] 

That  an  action  has  been  brought  by  his  cotenants,  E.  F.  and  G. 
H.,  in  the  superior  court  of  said  Alameda  county,  against  said 
C.  D.,  for  partition  of  said  land  among  the  said  cotenants. 

That  your  petitioner  believes  that  said  land  may  be  so  divided 
that  each  owner  will  be  benefited  thereby. 

Wherefore  he  prays  for  an  order  authorizing  him  to  assent  to 
the  petition  prayed  for  in  said  action. 

A  copy  of  the  complaint  in  said  action  is  attached  hereto  and 
is  referred  to  and  made  a  part  of  this  petition. 

NOTE. — Before  granting  the  partition  the  court  must  order  the  clerk 
to  mail  notices  of  the  application  to  all  the  known  relatives  of  the  ward 
residing  in  the  county  where  the  proceedings  are  had,  at  least  ten  days 
before  the  hearing,  which  must  be  in  open  court:  Cal.  C.  C.  P.,  sec. 
1772. 

The  same  order  may  be  made  by  agreement  between  a  guardian  aud 
the  cotenants  of  his  ward  without  action,  upon  partition  and  after  the 
same  notice:  Id.;  Arizona,  C.  C,  par.  1992;  Idaho,  C.  C.  P.,  sec.  .'^461; 
Montana,  C.  C.  P.,  sec.  2984;  Nevada,  Comp.  Laws,  sec.  99.  Stats.  1S99. 
p.  74;  New  Mexico,  Comp.  Laws,  sees.  1935-2094;  North  Dakota,  Pro- 
bate Code,  sees.  6517-6523;  South  Dakota,  Probate  Code,  sec.  387;  Utah, 
Rev.  Stats.,  sec.  4012;  Washington,  Ballinger's  Codes,  sec.  6417;  Wy- 
oming, Kev.  Stats.,  sec.  4902. 


890  New  Book  of  Forms. 


No.  1 515. — Petition  for  Writ — Habeas  Corpus. 
[Title  of  Court  and  Cause.] 

To  the  Honorable  IV.  T.  IV.,  Judge  of  the  Superior  Court  of  the 
City  and  County  of  San  Francisco,  State  of  California: 

The  petition  of  R.  H.  respectfully  shows : 

That  he,  the  said  R.  H.,  is  unlawfully  imprisoned,  detained, 
confined,  and  restrained  of  his  liberty  by  /.  McD.,  sheriff  of  the 
city  and  county  of  San  Frattcisco,  at  the  county  jail,  in  the  city 
and  county  of  San  Francisco,  in  the  state  of  California. 

That  the  said  imprisonment,  detention,  confinement,  and  re- 
straint are  illegal ;  and  that  the  illegality  thereof  consists  in  this, 
to  wit :  Your  petitioner  is  an  attorney  at  law,  in  good  standing 
and  duly  admitted  to  practice  in  the  supreme  court  of  the  state 
of  California.  That  on  December  10,  1904,  at  said  city  and 
county,  he  appeared  before  a  certain  judge  of  the  said  superior 
court,  to  wit.  Judge  B.,  requesting  the  said  judge  {state  the  facts]. 

Wherefore  your  petitioner  prays  that  a  writ  of  habeas  corpus 
may  be  granted,  directed  to  the  said  /.  McD.,  sheriff  as  aforesaid, 
commanding  him  to  have  the  body  of  said  R.  H.,  before  your 
honor  at  a  time  and  place  therein  to  be  specified,  to  do  and  receive 
what  shall  then  and  there  be  considered  by  your  honor,  concern- 
ing said  R.  H.,  together  with  the  time  and  cause  of  his  detention, 
and  said  writ;  and  that  he,  said  R.  H.,  may  be  restored  to  his 
liberty. 

NOTE. — ^In  California  a  person  unlawfully  imprisoned  or  restrained 
of  his  liberty,  under  any  pretense,  may  prosecute  a  writ  of  habeas  cor- 
pus, to  inquire  into  the  cause  of  such  imprisonment  or  restraint.  The 
application  may  be  signed  by  the  prisoner,  or  by  any  person  on  his 
behalf,  and  must  specify:  1.  That  the  person  is  restrained  of  his  liberty, 
th  officer  or  person  by  whom  he  is  confined  or  restrained,  and  the  place 
where,  and  naming  all  the  parties,  if  known,  or  describing  them,  if  not 
known;  2.  If  the  restraint  is  alleged  to  be  illegal,  the  petitioner  must 
state  in  what  the  alleged  illegality  consists;  3.  The  petition  must  be 
verified  by  the  party  making  the  application:  Pen.  C,  sees.  1473-1474; 
AJaska,  Codes,  pt.  4,  c.  57,  sec.  569;  Arizona,  C.  C.  P.,  par.  1219;  Idaho, 
Pen.  C,  sec.  5741;  Montana,  Pen.  C,  sec.  2741;  Nevada,  Comp.  Laws, 
sees.  3745,  3746;  New  Mexico,  Comp.  Laws,  sec.  2783;  North  Dakota, 
C.  C,  sec.  8650;  Oregon,  Codes  and  Statutes,  sec.  621;  South  Dakota, 
Probate  Code,  sec.  771;  Utah,  Rev.  Stats.,  sec.  1064;  Washington,  Bal- 
linger'a  Codes,  sec.  5816;  Wyoming,  Bev.  Stats.,  sec.  5464. 

No.  1516. — Petition — Relief  Against  Forfeiture  of  Lease. 
[Title  of  Court  and  Cause.] 

To  the  Honorable  W.  T.  W.,  Judge  of  the  Superior  Court  of  the 
City  and  County  of  San  Francisco,  State  of  California: 


Petition.  891 

Your  petitioner  respectfully  represents  that  on  the  tenth  day  of 
August,  igo6,  an  action  was  commenced  before  your  honor,  in 
said  court,  entitled  W.  B.  v.  S.  S.,  your  petitioner;  that  said  ac- 
tion was  brought  to  [here  insert  the  facts  of  the  action  stated  in  the 
i-')iiifylai)it\  ;  that  such  |)roceedings  were  thereafter  had  that  by  the 
judg-ment  of  said  court,  entered  on  the  tzventicth  day  of  said  month 
of  August,  the  lease  under  which  the  petitioner  held  the  premises 
described  in  the  complaint  was,  by  the  judgment  of  said  court, 
declared  forfeited,  and  petitioner  was,  on  the  day  following,  by 
the  sheriff  of  said  county,  and  the  order  of  said  court,  turned  out 
of  said  premises,  and  he,  at  the  same  time,  placed  said  plaintiff 
in  possession  thereof;  that  the  lease  under  which  petitioner  held 
said  premises  had  ten  years  to  run  from  said  tenth  day  of  August; 
that  when  plaintiff  made  demand  for  the  rent  of  said  premises,  as 
desciibed  in  the  complaint,  petitioner  was  absent  from  said  prem- 
ises, but  his  clerk,  A.  A.,  Esq.,  was  in  possession  as  his  agent; 
that  the  demand  for  rent  or  surrender  of  possession  described  in 
the  complaint  and  proved  at  the  trial  was  served  on  said  agent 
at  a  time  when  petitioner  zvas  absent  from  the  state  of  California 
on  business;  that  said  agent  did  not  inform  petitioner  of  said 
demand,  and  petitioner  did  not  knozv  that  said  demand  had  been 
made  until  after  said  action  zvas  commenced ;  that  zvhen  he  re- 
turned to  said  state  this  action  had  been  commenced,  and  peti- 
tioner, before  the  trial,  tendered  to  plaintiff  the  full  amount  due 
for  rent  and  all  the  costs  he  had  been  put  to,  and  fifty  per  cent 
thereon  in  addition;  that  petitioner  erected  on  said  premises,  under 
the  terms  of  his  lease,  outhouses  and  a  stable,  costing  over  one 
thousand  dollars,  has  put  a  nezv  roof  on  the  dzvelling-Jiouse  there- 
on at  an  expense  of  seven  hundred  dollars,  a)id  has  sunk  a  zvell 
thereon,  costing  three  hundred  and  twelve  dollars;  and  all  said 
expenditures  Jiave  been  made  zvithin  one  year  last  past,  and  jinder 
expectation  of  enjoining  said  premises  until  the  expiration  of  said 
leas^,  as  covenanted  therein;  that  the  forfeiture  of  said  lease  has 
worked  a  great  hardship  on  petitioner,  zvho  is  over  seventy-eight 
years  of  age,  and  he   avers  that  his  entire  fortune  has  been  ex- 
pended on  said  premises  as  aforesaid;  that  he  has  a  wife  and 
seven  children,  all  under  fifteen  years  of  age,  depending  on  him 
for  support,  and  his  entire  family  and  furniture  zvere,  by  said 
sheriff,  turned  out  of  said  premises  on  the  street  at  the  hour  of 
ten  o'clock  P.  M. 

Wherefore,  petitioner  prays  that  an  order  may  be  made  re^ 
storing  him  to  his  former  estate. 
(All  courts.) 

NOTE.— California,   C.   C.   P.,   sec.   1179;   Idaho,   C   C.  P.,   see.   3990  j 
Montana.  C.  C.  P.,  see.  2099;  North  Dakota,  C.  C,  sec.  4970;  Utah,  Be<- 

Stats.,  sec.  3584. 


892  New  Book  of  Forms. 


No.    1517. — Petition  to  Become   Sole  Trader. 
[Title  of  Court  and  Cause.] 

1.  The  petition  of  A.  J.  respectfully  represents  and  shows  to 
this  honorable  court  that  she  is  a  married  woman,  and  is  the 
wife  of  T.  J.,  and  is  now,  and  for  six  months  and  upwards  next 
preceding  the  thirtieth  day  of  September,  1906,  has  been  resid- 
ing with  her  said  husband  in  said  city  and  county  of  San  Fran- 
cisco, state  of  California. 

2.  That  your  petitioner  is  desirous  of  availing  herself  of  the 
benefits  of 'Title  XTI,  Part  III  of  the  Code  of  Civil  Procedure 
of  the  state  of  California,  and  obtain  a  judgment  and  order  of 
this  court,  authorizing  her  to  carry  on  and  transact  business  in 
her  own  name  and  on  her  own  account  in  the  city  and  county  of 
San  Francisco. 

3.  That  your  petitioner  makes  this  application  in  good  faith, 
•  to  enable  her  to  support  herself  and  others  dependent  upon  her, 

viz.,  her  five  children ;  and  that  the  following  are  the  names  of 
her  children  and  the  persons  dependent  upon  her  for  their  sup- 
port and  maintenance:  A.  J.,  aged  fourteen  years,  W.  J.,  aged 
tzvelve  years,  F.  J.,  aged  ten  years,  A.  J.,  aged  eight  years,  B.  J., 
aged  tive  years. 

4.  The  reason  of  insufficient  support  from  her  said  husband 
is  as  follows :  Her  said  hnshand  is  sickly,  and  troubled  zvith  a 
chronic  disease,  to  wit:  "Hemorrhoids"  ivhich  renders  him  unfit 
to  zvork  at  his  trade  a  great  part  of  the  time,  he  being  a  pile- 
driver  by  trade. 

5.  That  the  reason  a  divorce  is  not  sought  by  your  petitioner 
from  her  husband  is  as  follows:  There  is  no  legal  ground  for  a 
divorce. 

6.  The  nature  of  the  business  your  petitioner  proposes  to  con- 
duct and  carry  on  is  that  of  buying  and  selling  goods,  wares,  and 
merchandise,  and  keeping  a  general  variety  store,  and  the  place  of 
such  business  is  in  the  city  and  county  of  San  Francisco,  and 
the  capital  to  be  invested  therein  by  your  petitioner  is  three  hun- 
dred dollars,  and  the  source  from  which  the  same  is  derived  is  as 
follows:  Money  loaned  on  mortgage  security  by  your  petitioner 
of  one  R.  W. 

7.  That  of  the  moneys  to  be  used  in  said  business,  not  more 
than  five  hundred  dollars  has  come,  either  directly  or  indirectly, 
from  the  community  property,  or  of  the  separate  property  of  her 
husband,  and  that  this  application  is  not  made  with  any  view  to 
defraud,  delay,  or  hinder  any  creditor  or  creditors  of  her  husband, 
but  is  made  in  good  faith  for  the  purpose  of  enabling  her  to  sup- 
port herself  and  children  as  aforesaid. 


PiiTITION.  893 

Wherefore,  your  petitioner  prays  that  on  the  hearing  of  this 
petition  and  ai:)pHcation,  and  after  due  notice  given  and  publislied, 
a  judgment  and  order  be  made  by  this  honorable  court  authoriz- 
ing her  to  carry  on  business  in  her  own  name,  and  on  her  own 
account  as  such  sole  trader. 

NOTE.— California,  C.  C.  P.,  sec.  1815;  Idaho,  C.  C.  P.,  sec.  3888; 
Montana,  C.  C.  P.,  sec.  2292;   Nevada,  Comp.  Laws,  sees.  546-549. 


No.    1 5 18, — Petition — Dissolution   of   Corporation. 

[Title  of  Court  and  Cause.] 

To  the  Honorable  the  Superior  Court  of  the  City  and  County  of 
San  Francisco,  State  of  California: 

The  petition  of  the  M.  G.  Company  represents  and  alleges : 

I.  That  it  is  a  corporation  duly  incorporated  on  the  tenth  day 
of  October,  ipo^,  and  is  still  existing,  under  and  by  virtue  of  the 
laws  of  the  state  of  California,  and  that  its  principal  place  of 
business  is  in  the  city  and  county  of  San  Francisco. 

II.  That  at  a  meeting  of  the  stockholders  and  members  of  said 
corporation  held  for  such  purpose,  the  dissolution  of  said  corpora- 
tion was  resolved  upon  by  over  two-thirds  (2-3)  vote  of  all  the 
stockholders  and  members  of  said  corporation. 

III.  That  all  claims  and  demands  against  said  corporation 
have  been  fully  satisfied  and  discharged. 

IV.  That  the  total  number  of  shares  of  the  capital  stock  of 
said  corporation  is  ten  thousand  (10,000).  That  nine  thousand 
tzvo  hundred  and  -fifty  shares  of  the  said  capital  stock  of  said  cor- 
poration was  duly  represented  at  said  meeting,  called  as  afore- 
said, at  the  office  of  said  company,  in  said  city  and  county,  for  the 
purpose  of  the  dissolution  of  said  corporation,  on  the  )iinth  day  of 
June,  1905,  and  that  the  vote  of  all  the  stockholders  at  said  meet- 
ing was  as  follows:  Nine  thousand  one  hundred  and  seventy-five 
shares  represented  by  stockholders  as  aforesaid  were  for  dissolu- 
tion, and  seventy-Uve  shares  were  against  dissolution. 

V.  That  the  board  of  directors  or  trustees  of  said  corporation 
consists  of  five,  all  stockholders  thereof,  and  residents  of  said 
city  and  county  of  San  Francisco,  and  their  names  are  as  fol- 
lows: /.  R.,  R.  S.,  J.  I.,  P.  B.  and  S.  R.,  and  that  said  persons 
so  named  as  trustees  aforesaid  have  had  the  sole  management  of 
the  affairs  of  said  corporation  for  fen  months  next  preceding  this 
application,  and  are  now  such  managers. 

Wherefore,  your  petitioners  pray  that  your  honor  will  order 
this  petition  to  be  filed  with  the  clerk  of  this  court,  and  that  the 
clerk  give  notice  of  the  nature  of  this  application,  not  less  than 


^94  New  Book  of  Forms. 

thirty  nor  more  than  iifty  days,  and  of  the  time  and  place  of 
hearing  the  same,  by  publication  in  some  newspaper  pubHshed 
in  the  city  and  county  of  San  Francisco.  That  after  the  time  of 
publication  has  expired  your  honor  may,  upon  five  days'  notice 
to  any  persons  who  have  filed  objections  within  the  time  pre- 
scribed by  section  12^1,  C.  C.  P.,  or  without  notice,  if  no  objec- 
tions have  been  filed,  proceed  to  hear  and  determine  this  appli- 
cation, and  after  hearing  adjudge  and  declare  said  corporation 
dissolved,  in  accordance  with  the  law  in  such  cases  made  and 
provided. 

NOTE.— California,  C.  C.  P.,  sees.  1228-1234;  Arizona,  C,  C,  par.  772; 
Idaho,  C.  C.  P.,  sec.  3835;  Montana,  C.  C.  P.,  sec.  2191;  Nevada,  Comp. 
LaAvs,  sec.  887;  New  Mexico,  Comp.  Laws,  sec.  435;  North  Dakota,  C. 
C,  sees.  5762-5766;  Oregon,  Codes  and  Statutes,  see.  5068;  South  Dakota, 
C.  C,  sec.  638;  Utah,  Rev.  Stats.,  sees.  3661,  3662;  Washington,  Bal- 
linger's  Codes,  see.  4275;  Wyoming,  Rev.  Stats.,  see.  3181. 


No.  1 5 19. — Petition  of  District  Attorney  for  Citation — Inher- 
itance Tax. 

[Title  of  Court  and  Estate.] 

The  petition  of  H.  L.  B.  respectfully  shows:  That  he  is  the 
district  attorney  of  the  city  and  county  of  San  Francisco,  Cali- 
fornia. 

That  on  or  about  the  5th  day  of  April,  1^04,  the  above-named 
S.  D.  died  testate  at  the  city  and  county  of  San  Francisco,  state  of 
California  and  was  at  the  time  of  his  death  a  resident  of  the  state 
of  California,  and  left  estate  there. 

That  on  the  i^th  day  of  May,  A.  D.  1904,  J.  C.  R.  was  ap- 
pointed executor  of  his  zvill  and  letters  testamentary  were  issued 
to  him. 

That  he  qnalitied  and  he  is  now  the  executor  of  said  estate. 

That  there  is  property  belonging  to  the  estate  of  said  deceased, 
within  this  state,  or  subject  to  its  laws,  which  was  distributed  by 
an  order  of  said  court  in  said  estate  to  J.  D.,  residing  at  Gall- 
way,  state  of  New  York,  which  exceeds  in  value  the  sum  of  five 
hu7idred  dollars,  is  not  exempt  from  execution  and  is  subject  to 
taxation  under  the  laws  of  the  state  of  California  to  establish  a 
tax  upon  inheritances,  bequests  and  devises. 

Petitioner  further  represents:  That  the  treasurer  of  said  city 
and  county  of  San  Francisco  has  notified  him  in  writing  of  the 
failure  of  /.  D.,  who  is  the  person  liable  therefor  to  pay  said  tax, 
and  that  no  part  thereof  has  been  paid,  and  is  now  due  this  state ; 
and  your  petitioner  has  probable  cause  to  believe  that  said  tax 
still  remains  unpaid. 


PiCTlTION.  895 

Wherefore  your  petitioner  prays :  That  a  citation  issue  to  said 
/.  D.,  who  is  now  in  said  city  and  county  of  San  Francisco  citinj^f 
her  to  appear  before  this  court  at  a  day  designated  therein,  and 
show  cause  why  said  tax  should  not  be  paid. 


No.    1520. — Petition    for    Appointment    of    Appraiser — Inher- 
itance Tax. 

[Title  of  Court  and  Cause.] 

To  the  Honorable,  the  Superior  Court  of  the  city  and  county  of 
San  Francisco,  State  of  California: 

The  petition  of  H.  IV.  respectfully  shows:  That  he  is  a  resi- 
dent of  said  city  and  county,  a  taxpayer,  and  a  citizen  of  the 
United  States,  and  as  such  is  interested  in  having  a  tax  herein- 
after referred  to  paid. 

That  the  above-named  S.  D.  died  testate  in  the  state  of  Cali- 
fornia on  or  about  April  5,  A.  D.  1^04,  and  he  was  at  the  time 
of  his  death  a  resident  of  the  said  city  and  county  in  the  state 
of  California. 

That  on  the  i;^fh  day  of  May,  1904,  the  superior  court  of  said 
city  and  county,  by  its  order  appointed  /.  C.  R.,  executor  of  the 
will  of  said  deceased,  and  on  the  i^th  day  of  May,  A.  D.  1904, 
he  qualified  as  such  executor  and  letters  testamentary  were  then 
issued  to  him  and  he  is  now  the  qualified  and  acting  executor 
of  said  estate.  That  said  deceased  died  possessed  of  certain  prop- 
erty liable  to  be  taxed  under  the  laws  of  the  state  of  California 
relating  to  gifts,  legacies,  inheritances,  bequests,  devises,  succes- 
sions and  transfers.  That  the  value  of  the  property  subject  to 
said  tax  is  uncertain,  and  before  said  tax  can  be  collected,  it  will 
be  necessary  to  ascertain  the  value  of  said  property ;  and  a  de- 
scription of  the  property  above  referred  to  is  hereto  attached,  re- 
ferred to,  marked  Exhibit  "A,"  and  made  a  part  hereof.  [Par- 
ticularly describe  the  property.] 

Wherefore  petitioner  prays  for  an  order  appointing  an  ap- 
praiser to  ascertain  and  report  to  the  court  the  value  of  the  prop- 
erty described  in  said  Exhibit  "A." 

NOTE.— Act  of  March  20,  1905;  Stats.,  p.  341,  sec.  14. 


No,  1 52 1. — Petition  of  Treasurer's  Attorney — Inheritance  Tax. 

[Title  of  Court  and  Cause.] 

The  petition  of  R.  H.  respectfully  shows:  That  he  is  an  at- 
torney at  law  admitted  to  practice  in  all  the  courts  of  the  state  of 
California. 


896  New  Book  of  Forms. 

That  on  the  loth  day  of  July,  A.  D.  1905,  H.  B.,  then  treas- 
urer of  the  county  of  Butte,  appointed  petitioner  a  special  attor- 
ney to  prosecute,  ander  the  laws  of  the  state  of  California,  estab- 
lishing a  tax  on  gifts,  legacies,  inheritances,  bequests,  devises, 
successions  and  transfers,  proceedings  against  persons  interested 
in  property  liable  to  said  tax. 

That  on  or  about  April  5,  1905,  the  above-named  testator  died 
testate  at  said  city  and  county,  and  was  at  the  time  of  his  death 
a  resident  of  the  state  of  California,  and  left  estate  there. 

That  on  the  isth  day  of  May,  A.  D.  ip04,  J.  C.  R.  was  by  said 
court  appointed  executor  of  his  estate  and  letters  testamentary 
were  issued  to  him. 

That  he  qualified  and  he  is  now  the  executor  of  the  last  will 
of  said  deceased. 

That  there  is  property  belonging  to  the  estate  of  said  deceased, 
within  this  state,  or  subject  to  its  laws,  which  was  distributed  to 
/.  D.  residing  at  Gallway,  New  York,  which  exceeds  in  value  the 
sum  of  Hve  hundred  dollars,  is  not  exempt  from  execution  and 
is  subject  to  taxation  under  the  laws  of  the  state  of  Cilifornia 
to  establish  a  tax  upon  gifts,  legacies,  inheritances,  bequests,  de- 
vises, successions  and  transfers. 

Petitioner  further  represents :  That  H.  B.,  treasurer  of  the  said 
city  and  county,  has  notified  hitn  in  writing  of  the  failure  of  /. 
D.,  the  person  liable  therefor,  to  pay  said  tax  and  that  no  part 
thereof  has  been  paid,  and  is  now  due  this  state ;  and  your  peti- 
tion has  probable  cause  to  believe  that  said  tax  still  remains 
unpaid. 

Wherefore  your  petitioner  prays :  That  a  citation  issue  to  /. 
D.  citing  her  to  appear  before  this  court  at  a  day  designated 
therein,  and  show  cause  why  said  tax  should  not  be  paid. 

NOTE.— Act  of  March  20,  1905;  Stats,,  p.  341,  sees.  17,  18,  23. 


RETURN— ACCOUNT— REPORT. 


No.  1522. — Report  (Special)  of  Executor  Accompanying  An- 
nual Account — Particular. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  of  the  City  and  County  of 
San  Francisco: 

J.  C.  R.,  the  executor  of  the  last  will  of  S.  D.,  deceased,  has 
this  day  filed  a  full  account  of  his  administration,  as  directed  by 
sections  1622,  1628  and  16^1,  of  the  Code  of  Civil  Procedure. 


RjETURN — Account — Report.  897 

At  the  same  time  he  has  filed  a  full  report  of  his  administration, 
tog'ether  with  vouchers  for  all  charges,  debts,  claims  and  expenses 
which  he  has  paid. 

NOTICE  TO  CREDITORS. 

The  time  for  presentation  of  claims  expired  on  March  24,  1905. 
On  April  21st,  a  decree  was  entered  showing  that  due  notice  to 
creditors  has  been  given. 

SPECIAL  ADMINISTRATION  AND  CLERICAL  ASSISTANCE. 

During  his  special  administration  he  took  possession  of  all  the 
personal  property  described  in  the  inventory  and  appraisement. 
He  begs  leave  to  refer  to  his  final  account  and  report  of  the  spe- 
cial administration  and  make  it  a  part  of  this  report.  For  the 
reasons  in  that  report  stated  it  was  necessary  for  him  to  have 
assistance  entirely  capable  and  trustworthy ;  therefore  he  employed 
W.  B.  R.,  and  promised  to  pay  him  for  services  as  his  clerk  in 
the  care  and  management  of  this  estate  under  his  general  letters. 
He  commenced  work  on  April  6,  1904,  and  the  executor  has  paid 
him  $200  a  month  from  April  6,  IQ04,  to  April  6,  ipo^,  amount- 
ing to  $2,400,  which  was  a  necessary  expense  in  the  care  and 
management  of  the  estate,  and  the  executor  now  requests  the  court 
to  allow  that  amount  per  month  and  continue  it  until  final  dis- 
tribution. 

APPRAISEMENTS  AND  INVENTORIES. 

Two  inventories  and  appraisements  have  been  made  of  the  B., 
D.  and  M.,  K.  R.  Ranch.  The  first  by  appraisers  residents  of  the 
county  in  which  the  land  is  situated.  It  was  hurried  through 
w'ith  such  unusual  expedition,  and  the  value  of  the  decedent's  one- 
third  interest  was  so  much  lower  than  his  estimates,  that  the  ex- 
ecutor caused  a  reappraisement  by  the  appraisers  appointed  to 
appraise  San  Francisco  property.  They  made  a  thorough  exam- 
ination and  raised  the  value  of  the  estate's  interest  from  $20,971 
to  $i05,6jg,  which  is  now  thought  to  be  approximately  its  true 
value. 

Resident  appraisers  were  appointed  to  appraise  the  estate's  in- 
terests in  lands  in  Butte  and  Sutter  counties,  which  appraise- 
ments appear  to  be  altogether  fair. 

MISTAKE  IN  INVENTORY. 

The  H.  and  /.  W.  O.'s  note  was  appraised  at  $800.  It  was  a 
mistake  of  the  appraisers.  A  credit  of  $100  was  indorsed  on  it 
by  deceased.     Its  true  value  is  $yoo  only. 

PROPERTY    DISCLOSED    SUBSEQUENT    TO    INVENTORY. 

Found  in  safe  $1.00  not  in  inventory. 

Found  in  old  book  $2.^0  gold  and  70-100. 

Found  in  C.  S.  D.  Company  $8,S54-93  not  in  inventory. 

Found  H.  note  for  $300  not  in  inventory.     Paid. 
New  Forms — 57 


898  New  Book  of  Forms. 

debts  due  the  estate  collected— bonds,  notes,  etcc 

A.  S.  B.'s  note  for  $1,300  and  interest.     Paid. 
[Other  amounts  collected.] 

CHANGE  IN  FORM   OF  PROPERTY  DESCRIBED  IN  INVENTORY. 

An  undivided  1-24  interest  in  C.  S.  v.  L.  C,  judgment  has 
been  merged  into  S.  B.  Company  stock  and  upon  it  a  50%  divi- 
dend of  $g6o.50  has  been  paid. 

English  consols  amounting  in  total  to  14,400  pounds  that  were 
mentioned  in  inventory  as  having  no  coupons  were  exchanged 
for  other  consols  of  same  amount  that  bear  2  pounds  10  shillings 
interest.  This  had  to  be  done  in  order  to  collect  coupons  due 
on  said  consols. 

Judgment  for  $180.03  has  been  obtained  in  the  justice's  court 
of  the  city  and  county  of  San  Francisco  against  N.  G.  on  the 
two  promissory  nptes  described  in  the  inventory.  Judgment  en- 
tered November  4,  1904.  The  judgment  is  a  lien  subsequent  to 
a  mortgage  for  less  than  the  property  is  w^orth.  The  property  is 
for  sale,  and  when  sold  the  title  will  not  pass  with  tlie  judgment 
here  unsatisfied. 

ESTATE  OF  T.  B.  P. 

The  executor  has  presented  a  claim  against  the  estate  of  T.  h. 
P.  for  the  amount  of  the  promissory  note  described  in  the  in- 
ventory to  wit,  $;i,ooo,  which  was  allowed.  Since  then  he  has 
ascertained  that  after  family  allowance  and  expenses  of  adminis- 
tration are  paid  nothing  will  remain  for  the  creditors. 
PERSONAL  PROPERTY  SOLD. 

The  only  personal  property  sold  was  713  sacks  of  zvheat,  liable 
to  injury  by  dampness  and  heat,  etc.  It  was  sold  by  order  of 
coiirt  at  private  sale  for  $1,051.60,  the  price  for  the  best  wheat 
in  the  market. 

DEEDS  OF  REAL  ESTATE. 

The  court  ordered  the  executor  to  make  deeds  to  one  H.,  and  to 
O'K.  and  wife,  and  /.  /.,  in  compliance  with  written  contracts  to 
convey,  executed  by  deceased.  Deeds  have  been  executed  to  A. 
H.,  and  M.  O'K.  and  wife,  to  lots  in  San  Francisco,  Blocks  134, 
136,  157,  for  which  he  has  received  $788.20,  which  was  the  bal- 
ance due  on  the  contract  price.  The  deed  to  /.  has  not  been 
executed. 

CLAIMS  AGAINST  C.  ESTATE. 

He  presented  a  claim  for  $20,000  principal,  secured  by  mort- 
gage on  land  in  Stanislaus  county.  The  claim  was  approved. 
The  principal  and  interest  amount  to  $25,334.46.  Action  has 
been  commenced  to  foreclose  the  mortgage.  The  mortgage  is  a 
first  lien,  and  the  security  is  ample. 


Return — Account — Report.  899 

Another  claim  for  $1,200  on  a  promissory  note  was  presented 
and  allowed  against  the  same  estate.  It  is  thought  that  after 
the  expenses  of  administration  are  paid  that  at  best  the  original 
amount  without  interest  will  be  paid. 

THRASHER  MORTGAGE. 

An  action  was  commenced  in  Butte  county  to  foreclose  the  G. 
T.  et  al,  mortgage  for  $17,600  principal,  and  $io.y^i  interest. 
The  total  amount  due  was  received  and  the  mortgage  satisfied  of 
record. 

THE   L.  MORTGAGE. 

An  action  was  commenced  in  Kings  county  to  foreclose  the  C. 
G.  L.  mortgage  for  $12,000  principal  and  $^,^51.84  interest.  Ac- 
tion is  now  pending. 

L.  C.  AND  I.  COMPANY  MORTGAGE. 
The  mortgage  of  L.  C.  and  /.  Company,  $2^,000  and  interest, 
has  been  paid  and  the  mortgage  released. 

OTHER  ACTIONS  ENDING. 
In  the  following  cases,  numbered  i,  2,  5,  4,  5,  6,  7,  pending 
in  the  superior  court  of  Kings  county,  the  estate  has  an  undivided 
one-third  interest. 

[Title  of  Court  and  Cases.] 

Those  cases  are  all  ready  for  trial  and  involve  valuable  water 
risrhts  useful  for  the  B.  D.  and  M.  Ranch,  described  in  the  in- 
ventory. 

OTHER  ACTIONS. 

Estate  DarAs. 
G.  B.  B.  )  >jo  93852. 

M.  aS.et^l    )^'^^-  ^^• 
Superior  Court,  San  Francisco. 
[Title  of  Court  and  Cause  of  Other  Actions.] 

G.  E.  B.  ) 

J.  C.  R.,  Executor.  ) 

This  action  was  brought  to  annul  a  promissory  note  for  $10,000 
(described  in  the  inventory)  by  plaintiff,  to  S.  D..  deceased,  upon 
the  ground  that  it  did  not  represent  an  indebtedness,  but  was 
made  to  secure  deceased  against  any  loss  he  might  sustain  in  case 


900  New  Book  of  Forms. 

a  certain  deed  was  not  executed;  a  deed  in  which  both  plaintiflf 
and  deceased  were  interested  in  having  execvited. 

The  case  was  tried  in  the  superior  court  of  the  city  and  county 
of  San  Francisco,  Department  No.  4,  and  judgment  rendered  for 
plaintiff. 

The  attorneys  for  the  estate  have  not  yet  advised  the  executor 
respecting  future  proceedings  in  the  matter. 

LETTERS  OF  ADMINISTRATION  IN  THE  STATE  OF  NEVADA. 

Legal  proceedings  in  the  state  of  Nevada  make  it  necessary  to 
take  out  letters  of  administration  there.  The  only  matter  in- 
volved is  a  claim  amounting  to  about  $^4,86^. jO  in  which  de- 
ceased and  Mr.  G.  B.  B.  have  common  interests.  The  matter  .is 
still  pending. 

CLAIMS  PRESENTED. 

The  following  is  a  statement  of  claims  presented  and  allowed 
up  to  and  including  the  20i  day  of  March,  ipo^: 

Voucher  No.  8.     P.  R.,  rent $iOj  75 

Voucher  No.  7.     B.  L.  P.,  services   500  00 

Voucher  No.  6.     G.  G.,  services   100  00 

[And  other  claims.     Total,  $16,510.20.] 

CLAIMS   PAID. 
All  of  the  foregoing  claims  have  been  paid,  except — 

H.  &  M.,  balance ^2,700  00 

J.  C.  R.,  executor 6,000  00 

Total,  $8,100  00 

The  executor's  claim  of  $6,625.00  was  on  March  ly,  1905,  pre- 
sented for  approval  to  the  judge  of  this  court,  and  coijies  were 
served  on  the  attorneys  for  interested  parties.  No  opposition  to 
the  approval  beinj:  made,  the  claim  was  on  April  21,  jpo^,  ap- 
proved for  $6,000,  the  balance  ($625)  being  barred  by  the  statute 
forbidding  payment  of  claims  within  the  statute  of  limitations. 

REJECTED  CLAIMS. 

On  March  15,  IQ05,  C.  D.  V.  presented  a  claim  for  $750  on 
account  of  alleged  services  rendered  deceased  in  negotiating  the 
sale  of  certain  judgments  of  record  in  the  state  of  Nevada.  It 
was  rejected  on  March  14,  1905. 

DEBTS  OF  THE  ESTATE. 

Except  as  aforesaid,  there  are  no  debts  except  taxes  and 
expenses  of  administration. 


Return — Account — Report.  901 

estate's  money  at  inteeest. 

Since  the  executor  was  appointed,  he  caused  from  time  to  time 
$430,30'/. 20  of  the  money  on  hand  to  be  deposited  in  the  Bank 
of  California,  for  which  the  estate  receives  three  per  cent  a  year 
interest  from  the  date  of  deposit. 

The  remainder  of  the  estate's  money  to  the  amount  of  $2jr 
poy.Sp  is  on  dcposi-  in  banks,  without  interest  except  one  deposit 
of  $2,2^0.26,  which  draws  interest  at  the  rate  of  3  1-4  per  cent. 

CONTEST   OF   A   CODICIL. 

After  the  will  of  i8c)8  was  admitted  to  probate  a  writing  was 
discovered  which  the  executor  believed,  and  now  believes,  to  be 
in  the  deceased's  handwriting,  and  a  codicil  to  said  will.  He 
caused  it  to  be  filed.  It  was  contested  and  all  parties  appear  to 
be  ready  for  trial. 

NOTE.— California,  C.  C.  P.,  sees.  1622.  1628;  Arizona,  C.  C,  para. 
1854,  18G0;  Idaho.  C.  C.  P.,  sees.  4242,  4248;  :\rontana,  C.  C.  P.,  sees. 
2780,  2786;  Nevada,  Comp.  Laws,  sees.  2970,  2971:  North  Dakota,  Pro- 
bate Code,  sees.  6486.  6492;  Oregon,  Codes  and  Statutes,  sec.  1199;  South 
Dakota,  Probate  Code.  sees.  272,  278;  Utah,  Rev.  Stats.,  sees.  3941,  3943; 
"Washington,  Ballinger's  Codes,  sees.  6315,  6321. 


No.     1523. — Report    (Brief) — Administratrix     Accompanying 

Account. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  (or  the  Jtidgc  of)  said  Superior  Court  of 
the  City  and  County  of  San  Francisco,  State  of  Calif orma: 

M.  J.,  the  administratrix  of  the  estate  of  T.  J.,  deceased,  on 
this,  the  sixteenth  day  of  June,  1906,  respectfully  renders  the 
following  report  of  her  administration : 

That  letters  of  administration  of  said  estate  were  issued  to  her 
on  the  sixteenth  day  of  May,  igo6. 

That  immediately  after  her  appointment  she  caused  notice  to 
creditors  to  be  published  in  the  D.  E.  B.,  a  newspaper  published 
in  said  city  and  county. 

That,  within  ten  months  after  the  first  publication  of  said  no- 
tice, four  claims  against  the  said  deceased,  accompanied  by  proper 
affidavits,  and  supported  by  satisfactory  vouchers,  were  presented 
to  the  said  administratrix,  and  allowed  by  her  and  the  judge  of 
this  court,  the  amounts,  the  dates  of  presentation  and  allowance, 
and  all  the  particulars  of  which  claims  are  contained  in  the  state- 
ment of  debts  annexed  to  said  administratrix's  annual  account, 
this  dav  rendered. 


902  New  Book  of  Forms. 

That  another  claim  was  also  presented,  hut  rejected,  and  no  suit 
has  ever  been  brought  against  said  administratrix  therefor.  As 
will  be  seen  by  said  account  and  the  statement  annexed,  the  bal- 
ance of  money  now  in  the  hands  of  said  administratrix  is  the  sum 
of  $5.'795-5o,  and  the  claims  allowed  amount  to  the  sum  of  $2,4^0, 
and  the  expenses  of  closing  said  estate  amounting  only  to  the  sum 
of  $i,ip§.48;  there  is,  therefore,  money  sufficient  in  my  hands  to 
pay  all  the  debts  and  expenses,  and  said  administratrix  will  soon 
be  able  to  bring  her  administration  to  a  close. 

Said  administratrix  prays  that  the  judge  of  {or  said]  court  ap- 
point a  day  of  a  term  of  said  court  for  settlement  of  said  account, 
and  that  on  the  day  appointed,  or  on  such  subsequent  day  as  the 
hearing  may  be  adjourned  to,  after  the  appointment  by  said  court 
of  some  person  to  represent  the  minors  interested  in  the  said  estate 
who  have  no  legally  appointed  guardian,  it  being  first  proved  to 
the  satisfaction  of  said  court  that  due  and  legal  notice  of  the  time 
appointed  for  the  settlement  of  said  account  has  been  given,  said 
accoimt  be  settled  and  allowed  by  said  court. 

And  said  administratrix  will  ever  pray,  etc. 

NOTE.— California,  C.  C,  P^  se3s.  1622,  1628,  1631, 


No.  1524, — Report — Referee  of  Account. 

[Title  of  Court  and  Estate.] 

In  pursuance  of  an  order  of  this  court,  made  and  entered  on 
the  twenty-seventh  day  of  June,  ipo6,  appointing  me,  the  under- 
signed, a  referee,  to  examine  the  annual  account  of  M.  J.,  said 
administratrix  of  the  estate  of  T.  J.,  deceased,  rendered  for  settle- 
ment and  filed  in  this  court  on  the  sixteenth  day  of  June,  igo6, 
and  to  make  report  thereon,  I  do  now  respectfully  report  to  this 
honorable  court,  as  follows : 

That  I  have  fully  and  carefully  examined  said  account  and  the 
vouchers  produced  in  support  thereof;  that  I  have  been  attended 
upon  said  examination  by  said  administratrix  and  her  counsel, 
and  by  F.  J.  F.,  Esq. 

That  said  account  contains  a  just  and  full  statement  of  all  the 
moneys  received  and  disbursed  by  said  administratrix  from  the 
sixteenth  day  of  May,  ipo6,  the  commencement  of  her  administra- 
tion of  said  estate,  to  the  sixteenth  day  of  June,  1906,  including 
all  sums  of  money  belonging  to  the  said  estate  which  came  to  her 
hands  as  such  administratrix,  or  were  received  by  any  other  per- 
son by  her  order  or  authority  for  her  use  as  such  administratrix 
during  said  period. 


RjETURN — Account — Report.  903 

That  the  amount  of  said  money  thus  received,  as  aforesaid,  was 
the  sum  of  sez'en  thousand  one  hundred  and  sixty-five  dollars,  and 
the  amount  thus  disbursed,  as  aforesaid,  was  the  sum  of  one  thou- 
sand three  Jiundrcd  and  sixty-nine  dollars  and  fifty  cents,  leavinjEf 
in  the  hands  of  the  said  administratrix  the  sum  of  five  thousand 
seven  hundred  and  ninety-five  dollars  and  fifty  cents,  to  the  credit 
of  said  estate,  subject  to  the  payment  of  the  claims  allowed  against 
said  estate  and  the  expenses  of  closing  the  administration. 

That  for  all  items  of  expenditure  proper  vouchers  were  pro- 
duced before  me,  as  filed  in  this  court,  except  for  three  items,  each 
below  twenty  dollars,  and  amounting-  in  the  aggregate  to  a  sum 
not  exceeding  five  hundred  dollars,  to  wit,  the  sum  of  two  dollars ; 
for  these,  no  vouchers  were  produced,  but  it  was  proved  before 
me,  by  the  oath  positive  of  the  said  administratrix,  as  attached 
to  the  said  account,  which  oath  is  uncontradicted,  that  such  items 
were  actually  paid  by  her,  at  the  places  where,  the  dates  when, 
and  to  the  parties  stated  and  set  forth  in  said  account. 

I  further  report,  that,  after  having  fully  and  carefully  examined 
said  account,  I  am  satisfied  that  the  same  is  true,  just,  and  cor- 
rect, and  entitled  to  allowance  and  approval. 

I  therefore  respectfully  recommend  its  allowance  and  approval, 
and  that  a  decree  be  entered  that  said  account  as  presented  be 
settled,  approved,  and  allowed. 

All  of  which  is  respectfully  submitted. 

NOTE. — ^In  California  the  referee  haars  and  determines  the  matter, 
and  makes  his  report.  The  same  proceedings  are  had  in  all  respects, 
and  the  referee  has  the  same  powers,  and  is  entitled  to  the  same  com- 
pensation, and  subject  to  the  same  control,  as  in  other  cases  of  refer- 
ence. The  court  may  remove  th«  referee,  appcint  another  in  his  place, 
set  aside  or  confirm  his  repoit,  and  adjudge  costs,  as  in  actions  against 
execute)  s  or  administrators,  and  the  judgment  of  the  court  thereon  is 
as  valid  and  effectual,  in  all  respects,  sis  if  the  same  had  been  rendered 
in  a  suit  commenced  by  ordinary  process:  CsJ.  C.  C.  P.,  sees.  1507,  15G8; 
Alaska,  Codes,  pt.  4,  e.  Si,  sec.  286;  Arizona,  C.  C,  pars.  1756,  1757; 
Idaho,  C.  C.  P.,  sees.  4147,  4148;  Montana,  C.  C.  P.,  sees.  2617,  2618; 
North  Dakota,  Probate  Code,  sees.  6411,  6412;  Oregon,  Codes  and  Stat- 
utes, sees.  1164,  1165;  South  Dakota,  Probate  Code,  sees.  185,  186;  Utah, 
Rev.  Stats.,  sec.  3864;  Washington.  Balliuger's  Codes,  sees.  6241,  6242; 
Wyoming,  Rev.  Stats.,  sees.  4762,  47S3. 


No.  1525. — Report  of  Appraiser — Inheritai.ce  Tas. 
[Title  of  Court  and  Estate,] 

The  undersigned,  appraiser,  appointed  by  said  court  by  author- 
ity of  the  laws  of  the  state  of  California  establishing  a  tax  on 
gifts,    legacies,    inheritances,   bequests,    devises,    successions   and  T 
transfers,  hereby  respectfully  reports  his  proceedings  under  the 
said  appointment,  as  follows: 


904  New  BoC'K  01^  Forms. 

Immediately  after  appointm<'nt,  to  wit,  on  the  roth  day  ot 
AugiLSt,  A.  D.  igod,  I  gave  notice  by  mail  to  all  persons  known 
to  have  or  who  claim  an  interest  in  the  property  of  said  estate 
subject  to  the  above-mentioned  tax,  that  I  would,  at  a  time  and 
place  in  said  notice,  appraise  the  property  of  the  estate  subject 
thereto. 

Said  notices  were  each  inclosed  in  sealed  envelopes  and  ad- 
dressed to  each  of  said  persons  named  in  said  notice  at  their  re- 
spective places  of  residence,  and  placed  by  me  in  the  United  States 
postoffice  at  the  city  and  county  of  San  Francisco,  California,  with 
full  postage  prepaid  on  each  envelope,  on  said  loth  day  of  Au- 
gust, A.  D.  igo4,  in  time  to  be  forwarded  by  mail  to  each  address 
on  the  day  of  said  deposit ;  a  true  copy  of  said  notice  is  annexed 
hereto  and  made  a  part  hereof. 

That  the  persons  named  in  said  notices  are.  as  far  as  can  be 
ascertained,  all  of  the  persons  who  have,  or  claim  to  have,  any 
interest  in  any  of  said  taxable  property. 

I  fu:i:her  report,  that  at  the  time  and  place  designated  in  said 
notice,  to  wit,  on  the  loth  day  of  September,  A.  D.  1904,  at  10  A. 
M.  of  said  day,  at  City  Hall  (McAllister  St.  entrance),  in  the  city 
and  county  of  San  Francisco,  I  appraised  all  of  the  property  of 
said  estate  subject  to  the  payment  of  said  tax  on  gifts,  legacies, 
inheritances,  bequests,  devises  and  successions,  at  their  fair  mar- 
ket value. 

That  a  statement  of  said  appraisement  is  herein  referred  to, 
hereunto  annexed,  marked  Exhibit  "A,"  and  made  a  part  of  this 
report. 

The  following  named  interested  persons  were  present :  /.  C.  R., 
executor  of  the  will  of  deceased  ;  H.  D.,  G.  F. 

NOTE. — Act  of  March  20,  1905;  Stats,,  p.  341,  sec.  14. 

No.   1526. — Return — Account  of  Sale  of  Real   Estate. 
[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  of  the  City  and  County  of 
San  Francisco,  State  of  California: 

M.  J.,  the  administratrix  of  the  estate  of  T.  J.,  deceased,  re- 
spectfully makes  the  following  return  of  her  proceedings  under 
the  order  of  this  court,  dated  on  the  seventh  day  of  December, 
IQ04,  authorizing  said  administratrix  to  sell  certain  real  estate, 
and  report,  as  follows,  to  wit: 

That  in  pursuance  of  said  order  of  sale  she  caused  notice  of 
the  time  and  place  of  holding  such  sale  to  be  posted  up  in  three  of 
the  most  public  places  in  said  city  and  county  of  San  Francisco, 
in  which  the  land  ordered  to  be  sold  is  situated,  and  to  be  pub- 


Return — Account — Report.  905 

fished  in  the  D.  E.  R.,  a  newspaper  printed  and  published  in  the 
said  city  and  county,  for  three  weeks  successively  next  before  such 
sale,  in  which  notice  the  lands  and  tenements  to  be  sold  were  de- 
scribed with  common  certainty ;  all  of  which  will  also,  and  more 
fully,  appear  by  the  affidavits  marked  respectively  "A"  and  "B," 
hereunto  annexed,  and  made  a  part  of  this  return. 

That  at  the  time  and  place  of  holding-  such  sale  specified  in 
such  notice,  to  wit,  on  Monday,  the  fourth  day  of  January,  igo§, 
between  the  hours  of  p  o'clock  in  the  morning,  and  the  setting 
of  the  sun  on  the  same  day,  to  wit,  at  twelve  o'clock  M.,  and  at 
the  auction  salesrooms  of  0.  P.,  314  Montgomery  street,  in  said 
city  and  county,  she  caused  to  be  sold  in  one  parcel,  judging  it 
most  beneficial  to  said  estate,  at  public  auction,  to  the  highest  bid- 
der, upon  the  following  terms,  to  wit,  for  cash,  and  subject  to  con- 
firmation by  this  court,  the  real  estate,  described  in  said  order  of 
sale  and  in  said  notice. 

That  at  such  sale  vS".  W.  became  the  purchaser  of  said  real  estate 
for  the  sum  of  thirty-one  hundred  dollars,  he  being  the  highest 
and  best  bidder,  and  said  sum  being  the  highest  and  best  sum  bid. 

That  the  said  sale  was  legally  and  fairly  conducted ;  that,  as 
said  administratrix  believes,  the  sum  bid  is  not  disproportionate 
to  the  value  of  the  property  sold,  and  that  a  sum  exceeding  such 
bid  at  least  ten  per  cent,  exclusive  of  the  expenses  of  a  new  sale, 
cannot  be  obtained  all  of  which  will  also  and  more  ftilly  appear 
by  the  affidavit  marked  ''C,"  hereunto  annexed  and  made  a  part 
of  this  return. 

That  the  account  of  sales  marked  "D,"  hereunto  annexed  and 
made  a  part  of  this  return,  is  true  and  correct. 

And  that  before  making  such  sale,  to  wit,  on  the  thirtieth  day 
of  December,  ipoj,  said  administratrix,  as  required  in  and  by 
said  order  of  sale,  duly  executed  an  additional  bond  to  the  state 
of  California,  with  sufficient  sureties,  duly  approved,  to  wit,  on 
the  day  last  aforesaid,  by  the  judge  of  this  court,  in  the  penal  sum 
of  five  thousand  dollars,  conditioned  that  the  said  administratrix 
should  faithfully  execute  the  duties  of  the  trust,  according  to  law. 

Wherefore  said  administratrix  prays  for  a  hearing  upon  this 
return,  and  that  this  honorable  court  make  an  order  confirming 
the  said  sale,  and  directing  conveyances  to  be  executed  to  said 
purchaser,  conveying  all  the  right,  title,  interest,  and  estate  of 
said  intestate  in  the  said  premises  at  the  time  of  his  death,  and 
all  the  right,  title,  and  interest  of  said  estate  in  the  same,  or  that 
such  other  or  further  order  may  be  made  as  is  meet  in  the  prem- 
ises. 

And  your  petitioner  will  ever  pray,  etc. 

[This  is  to  be  "verified  bv  affidavit":  C.  C.  P..  sec.  1575.  See 
•Verification."] 

See  Forms  No.  604.  "B,"  No.  605,  "C,"  No.  606,  "D." 


9o6  New  Book  of  Forms. 

NOTE. — In  California  a  return  of  proceedings  is  made  and  filed  in 
the  office  of  the  clerk.  A  hearing  maj''  be  asked  for  in  the  return,  or 
by  petition  subsequently,  and  thereupon  the  clerk  fixes  the  day  for  the 
hearing,  of  which  notice  of  at  least  ten  days  is  given  by  the  clerk,  by 
notices  posted  in  three  public  places  in  the  county,  or  by  publication  in 
a  newspaper,  and  briefly  indicates  the  land  sold,  the  sr.in  for  which  it 
was  sold,  and  refers  to  the  return  for  further  particulars.  Upon  the 
hearing,  the  court  examines  the  return  and  witnesses,  and,  if  the  pro- 
ceedings were  unfair,  or  the  sum  bid  disproportionate  to  the  value,  and, 
if  it  appear  that  a  sum  at  least  ten  per  cent  above  the  bid  reported 
exclusive  of  the  expenses  of  a  new  sale  may  be  obtained,  the  court 
vacates  the  sale  and  orders  a  new  one,  and  then  the  same  notice  is  given 
of  the  resale  the  same  as  if  there  had  been  no  previous  sale.  If,  when 
the  report  of  the  first  sale  is  up  for  hearing,  a  responsible  person  ofTers 
in  writing  to  pay  ten  per  cent  more  than  the  amount  reported,  the 
court  has  authority  [discretion]  to  accept  such  ofl'er  and  confirm  the 
sale  to  such  person,  or  to  order  a  new  sale:  Cal.  C.  G.  P.,  sec.  1552. 

[The  practice  in  San  Francisco  is,  when  such  increased  bid  is  made, 
for  the  judge  to  announce  and  read  the  bid  from  the  bench  and  ask  if 
any  person  will  make  a  higher  bid.  If  a  higher  bid  is  offered  (orally 
or  "in  writing)  the  judge  announces  it  and  invites  higher  bids.  If  other 
bids  are  made  they  are  announced,  and  the  sale  continues  until  the 
limit  of  offers  is  reached,  and  the  property  is  then  declared  sold  to  the 
highest  bidder,  as  if  it  were  a  public  auction,  which  in  fTct  it  is. 
There  is  no  statute  for  this  proceeding,  but  it  is  clearly  sanctioned  by 
the  discretion  given  to  the  court  in  the  section  of  the  code  above  cited.] 

Alaska,  Codes,  pt.  4,  c.  85,  sees.  840,  841;  Arizona,  C.  C,  par.  1792; 
Idaho,  C.  C.  P.,  sec.  4189:  Montana,  C.  C.  P.,  sec.  2685;  Nevada,  Comp. 
Laws,  sec.  2927;  New  Mexico,  Comp.  Laws,  sec.  2083;  North  Dakota, 
Probate  Code,  sec.  6439;  Oregon,  Codes  and  Statutes,  sees.  1179,  1903; 
South  Dal«)ta,  Probate  Code,  see.  216;  Utah,  Rev.  Stats.,  sees.  389S, 
3899;  Washincrton,  BaUinger's  Codes,  sees.  6272,  6466;  Wyoming,  Rev. 
Stats.,  sec.  4794. 


No.   1527. — Return — Account  of  Sales  of  Personal  Property, 

etc. 

[Title  of  Court  and  Estate.] 

M.  J.,  administratrix  of  the  estate  of  T.  J.,  deceased,  respect- 
fully returns  the  following-  account  of  sales  made  by  her  under  the 
order  of  the  judge  of  this  court,  dated  on  the  thirteenth  day  of 
August,  ipo§,  and  reports  as  follows,  to  wit: 

That  in  pursuance  of  said  order  of  sale  she  g^ave  public  notice 
for  at  least  ten  days,  by  publication  in  the  D.  B.  R.,  a  nezvspaper 
published  in  said  city  and  county  [or  by  posting  notices  in  three 
public  places  in  said  city  and  county] ,  in  which  notice  were  speci- 
fied the  time  and  place  of  sale,  as  will  also  and  more  fully  appear 
by  the  affidavit  marked  "A,"  hereunto  annexed  and  made  a  part 
hereof. 

That  at  the  time  and  place  specified  in  said  notice,  to  wit,  at 
the  auction  salesrooms  of  A.  F.,  northeast  corner  of  Montgomery 
and  California  streets,  in  said  city  and  county,  on  the  twenty-fifth 


RjETURN — Account — Report.  907 

day  of  August,  iQOj,  at  tivclvc  o'clock  M.,  sJic  causerl  to  be  sold, 
through  said  A.  P.,  auctioneer,  to  the  hit;hest  bidfler  for  cash,  the 
property  described  in  said  notice  and  mentioned  in  the  account  of 
sales  attached  to  the  affidavit  marked  "B,"  hereunto  annexed  and 
made  a  part  hereof. 

That  at  such  sales  the  persons  named  in  said  account  of  sales 
became  the  purchasers  of  the  articles,  and  at  the  prices  set  oppo- 
site their  names  respectively ;  that  all  of  the  said  property  was 
present  at  the  time  of  scllini:;-;  that  the  said  sales  were  lej^ally  made 
and  fairly  conducted ;  and  that  the  sums  bid  were  not  dispropor- 
tionate to  the  value  of  the  property  sold ;  all  of  which  will  also 
and  more  fully  appear  by  said  affidavits  marked  "B,"  "C"  and 
"D,"  hereto  attached. 

[See  forms  Nos.  607,  608,  609.] 

Wherefore  said  administratrix  prays  that  said  sales  be  confirmed 
and  approved,  and  declared  valid. 

NOTE. — California,  C.  C.  1\,  sec.  1522;  Alaska,  Codes,  pt.  4,  c.  85, 
sees.  840,  841;  Arizona,  C.  C,  par.  1767;  Idaho,  C.  C.  P..  see.  4161;  Mon- 
tana, C.  C.  P.,  sec.  2651;  Nevada,  Comp.  Laws,  sec.  2911;  New  Mexico, 
Comp.  Laws,  sec.  2066;  North  Dakota,  Probate  Code,  sees.  6428-6434; 
South  Dakota,  Probate  Code,  sec.  190;  Utah,  Rev.  Stats.,  sec.  3885;  Wash- 
ington, Ballinger's  Codes,  sec.  6265;  Wyoming,  Eev.  Stats.,  sec.  4772. 


No,   1528. — Return — Account  Thirty    Days    After    Notice  to 
Creditor  has   been   Given. 

[Title  of  Court  and  Estate.] 

/.  C.  R.,  executor  of  the  last  will  of  S.  D.,  deceased,  renders  this, 
his  account,  due  within  thirty  days  after  the  expiration  of  the  time 
mentioned  in  the  notice  to  creditors  within  which  claims  must  be 
exhibited. 

The  following-  is  an  exhibit  of  all  debts  which  have  been  pre- 
sented and  allowed  during  his  administration. 

P.  R $105  75 

[And  others.] 

The  following  claim  was  presented  on  March  ij,  ipo^,  and  re- 
jected: 

C.  D.   V $J50  00 

[And  others.] 
All  allowed  claims  have  been  paid  except  H.  &  M. — bal- 
ance   $2,100  00 

J.  C.  R 6,000  00 

(For  the  particulars  of  all  claims  see  report  filed  with  this  ex- 
hibit.) 


9o8 


Kew  Book  of  Forms. 


EXniBIT  AND  ACCOUNT. 

The  following:  pages  show  the  amount  of  money  on  hand,  the 
source  from  which  it  came,  the  amount  expended  and  to  whom 
paid,  and  the  balance  on  hand. 

(For  other  particulars  see  report  referred  to.) 

CASH  RECEIVED. 

IC)04. 

May  14.     In  D.  M.  Bank  (from  spl.  adm.) $  40,871  S9 

"     14.     In  sack  in  safe  (from  spl.  adm.) 557  40 


$  41,422  79 


[And  others.] 


June 


H 
18. 

19 
20 

23 
24 
4 
4 
4 
4 


Interest  on  above 6,000  00 

Interest  U.  S.  ^%  registered  hands 1,000  00 

In  London  and  San  Francisco  Bank 22,000  00 

In  Rideov.t  Bank,  Gridley 6.000  00 

Sale  of  /Jj  sks.  wheat  in  Gridley  to  Blum. .  7,000  00 

Return  taxes  on  above  wheat 16  00 

Spring  Valley  Water  Co.  dividend  No.  i.  .  1,000  00 

Spring   Valley   Water  Co.    dividend  No.   2  ^,000  00 

Spring    Valley    Water   Co.    divided   No.    5  3,000  00 
Spring   Valley   Water   Works  coupons,  loi 

at  $10  each 7,000  00 

F.  M.  and  M.  G.  note 7,000  00 


$83,922  79 


CASH  PAID  OUT. 


1904. 

April  20. 

May    13. 

"       24. 


24. 

25- 
26. 
26. 
28. 


Voucher  No. 
.  . .  .       I 


28. 


[And  other.] 


Court  fees,  filing  petition 

Court  fees 2 

Second   installment   taxes   L.    mort- 
gage         12 

Express  sample  from  Gridley 8 

N.  G.  Co.,  undertakers 4 

Dr.  P.  K.  B.,  services g 

I.  S.  H.,  nurse 5 

Wells,  Fargo  &  Co.  paying  taxes  in 

Hanford 77 

Stamps 


$    5  00 
I  00 

108    TO 
30 

547  00 

JOc?    00 

25  00 

I    00 

30 


$1,000  yo 


Return — Accouxt — Rkport.  909 

NOTE. — Alaska,  Codes,  pt.  4,  c.  86,  sees.  859-871 ;  Arizona,  C.  C,  par. 
1860;  Idaho,  C.  C.  P.,  sec.  4248;  Montana,  C.  C.  P.,  sec.  2780;  Ne\-ada, 
C'omp.  Laws,  sec.  2970;  New  Mexico,  (Jomp.  Laws,  sec.  2005;  North  Da- 
kota, Probate  Code,  sec.  6492 ;  South  Dakota,  Probate  Code,  sec.  278 ;  Wash- 
ington, Ballinger's  Codes,  sec.  6331;  Wyoming,  Rev.  Stats.,  sec.  1718. 


No.  1529. — Return — Account — Six  Months,  Executor's  or  Ad- 
ministrator's. 

[Title  of  Court  and  Estate.] 

To  the  Honorable,  the  Superior  Court  of  the  City  and  County  of 
San  Francisco: 

J.  C.  R.,  executor  of  the  will  of  S.  D.,  deceased,  makes  this  his 
first  account  as  executor  from  May  14,  1904,  to  November  14, 

1904- 

Exhibit  "A"  is  a  statement  of  all  money  received;  Exhibit  "B" 

is  a  statement  of  all  money  expended. 

The  amount  received  is  $429,^49.78;  and  the  amount  expended 
is  $20,025.00;  the  balance  is  $409,524.78. 

Reference  is  made  to  the  report  and  account  of  the  special  ad- 
ministrator on  file  in  this  estate. 

The  following  are  the  names  of  those  who  presented  claims,  and 
the  amount  of  their  demands : 

B.  L.  F $500.00 

[And  others  named.] 

The  following  claims  have  been  presented: 

H.  J.,  $2,100  for  legal  services. 

Said  claim  has  not  been  acted  upon. 

All  other  claims  have  been  approved  and  filed. 

Verified. 

EXHIBIT  "A." 

CASH    REX^rVKD. 

May  14,  1904.     In  D.  B.  Bank  $429,549.78 

[Then  follow  other  items.] 

EXHIBIT  "B," 

CASH   PAID   OCT. 

April  20,  1904.     Court  fees — filing  petition  for  letters .  . .  .$5  00 

[Then  follow  other  pa>'Tnents.] 

Balance,  $429,049.00 

The  accotmt  must  be  verified  under  oath  by  the  one  who 
makes   it. 


910  New  Book  of  Forms. 

NOTE. — The  practitioner  vriW  notice  the  fact  that  the  six  months  ac- 
count mnst  be  "under  oath":  Cal.  C.  C.  P.,  sec.  1622.  The  next  ac- 
count due  is  the  one  to  be  filed  within  thirty  days  after  the  time  to 
present  claims  has  elapsed:  Id.,  sec.  1628;  Alaska,  Codes,  pt.  4,  c.  86, 
sees.  859-971;  Arizona,  C.  C,  par.  18i5;  Idaho,  C.  C.  P.,  sec.  4242;  Mon- 
tana, C.  C.  P.,  sec.  2780;  Nevada,  Comp.  Laws,  sec.  2971;  New  Mexico, 
Comp.  Laws.  sec.  2005;  North  Dakota,  Probate  Court,  sec.  6486;  Oresjon, 
Codes  and  Statutes,  sec.  1191;  South  Dakota,  Probate  Code,  sec.  272; 
Utah,  Rev.  Stats.,  sec.  3941;  Washington,  Ballinger's  Codes,  sec.  6315. 

No.    1530. — Return — Account    of  Agent    for    Absent    Person 
Made  One  Year  After  His  Appointment. 

[Title  of  Court  and  Estate.] 

Now  comes  B.  F.  G.  and  making  his  first  annual  account  as 
agent  for  A.  B.,  a  nonresident  of  the  state  of  California,  states 
the  facts  to  be  as  follows: 

First. 

That  on  the  day  of  his  appointment  he  took  charge  of  all  the 
real  estate  and  improvements  described  in  the  order  appointing 
him,  and  also  a  large  quantity  of  mining  tools  and  machinery  not 
in  place  or  part  of  the  realty ;  all  of  which  has  been  inventoried 
and  is  fully  described  in  schedule  "A"  attached  hereto  and  made 
a  part  hereof.  That  said  personal  property  has  been  appraised  by 
H.  G.  and  /.  K.,  who  are  competent  to  estimate  the  value  of  such 
property,  at  $8/, ^26.^0.  Said  property  is  in  every-day  use  and 
no  part  of  it  has  been  sold. 

Second. 

An  income  has  been  derived  by  said  E.  F.  G.,  from  working  said 
mine  and  selling  the  proceeds  of  $26^,'/2/.8g,  net. 

Schedule  "B"  attached  hereto  and  made  a  part  of  this  account 
contains  a  summary  of  all  the  receipts  and  expenditures  of  said 
mine. 

Third. 

The  taxes,  amounting  to  $i,y6o,  have  been  paid.  All  of  said 
property  belongs  to  the  absent  owner,  A.  B. 

Fourth. 

During  the  period  covered  by  this  account  the  agent,  E.  F.  G., 
has  paid  himself  a  monthly  compensation  of  $80,  which  ineludcs 
his  hoard,  washing  and  incidental  expenses  in  managing  said  mine 
and  selling  its  bullion  products.  All  of  which  expenditures  ap- 
pear more  fully  in  schedule  "B"  above  referred  to. 

Fifth. 

The  mine  is  now  in  first-class  order  and  the  prospects  arc  bright 
for  valuable  and  extensive  developments  on  the  1600  foot  level  of 
Shaft  No.  2. 


RJSTURN — ACCOUxVT — REPORT.  9II 

Sixth. 

Yotrr  agent  respectfully  requests  the  court  to  increase  his  com- 
pensation, as  general  manager,  from  $So  to  $100  a  month  until 
said  property  is  sold  and  the  proceeds  paid  into  the  state  treasury'. 
An  examination  of  the  expenditures  for  labor  and  supplies  will 
show  that  the  wages  paid  to  all  workers  and  officers  in  the  mine 
are  below  the  usual  rates,  but  it  may  be  advisable  to  slightly  in- 
crease the  amount  of  the  payroll  in  the  near  future. 

NOTE.— Calif onii a,  C.  C.  P.,  sec.  1694;  Arizona,  C.  C,  par.  1920;  Idaho, 
C.  C.  P.,  sec.  4296;  Montana,  C.  C.  P.,  sec.  2S82;  North  Dakota,  Probate 
Code,  sec.  65.^.*?;  South  Dakota,  Probate  Code,  ppcs.  324-331  j  Utah,  Kev. 
Stats.,  sec    3972;   Wyoming,  Kev.  Stats.,  sec.   4855. 


No.  1531. — Account — Contest  of. 

[Title  of  Court  and  Estate.] 

Now  comes  A.  B.  and  contesting  the  first  annual  account  of 
said  administrator,  for  cause  for  contest  says :  ■  That  the  item 
therein  of  $1,2^0  expended  by  said  administrator  for  the  salary  of 
a  clerk  who  assisted  him  in  attending  to  the  business  of  adminis-  f 
tering  said  estate  was  unnecessary,  and  is  not  an  expenditure  to  be 
paid  out  of  the  assets  of  said  estate. 

NOTE. — Executors  and  administrators  shall  be  allowed  all  necessary 
expenses  in  the  care,  management  and  settlement  of  the  estate:  Gal. 
C.  C.  P.,  sec.  1616.  Upon  the  day  appointed  for  settlement  of  an  account 
any  interested  person  may  appear  in  writing  and  contest  any  item  in 
it:  Id.,  sees.  1626,  1635;  Alaska,  Codes,  pt.  4,  c.  86,  sec.  863;"  Arizona, 
C.  C,  par.  1858;  Idaho,  C.  C.  P.,  sec.  4246;  Montana,  C.  C.  P.,  sec.  2784; 
Nevada,  Comp.  Laws,  see.  2974;  North  Dakota,  Probate  Code,  sec.  6498; 
Oregon,  Codes  and  Statutes,  sec.  1203;  South  Dakota.  Probate  Code,  sec. 
276;  "Washington,  Ballinger '3  Codes,  sec.  6319;  Wyoming,  Rev.  Stats., 
Bee.  4716. 


No.   1532. — Return — Account  of  Trustee 

[Title  of  Court  and  Estate.] 

Now  comes  A.  B.,  the  trustee  appointed  by  the  last  will  of  C.  D., 
deceased,  and  making  this  his  first  account  after  the  final  distribu- 
tion of  all  the  property  belonging  to  the  estate  of  the  said  C.  D., 
deceased,  reports  that  on  June  j,  190^,  he  received  from  E.  F.,  the 
executor  of  the  last  will  of  deceased,  upon  final  distribution,  the 
sum  of  $^6^,742  in  gold  coin  of  the  United  States.  That  on  the 
8th  day  of  June,  igo6,  he  purchased  Rve  hundred  and  sixty-three 
registered  j  per  cent  bonds  of  the  government  of  the  United  States 


912  New  Book  of  Forms. 

of  the  issue  of  May  i6,  1902,  with  all  interest  coupons  unpaid, 
which  had  not  been  paid  at  the  time  of  purchase,  attached  to  said 
bonds,  and  paid  therefor  $56^,000  in  gold  coin.  Said  bonds  are 
numbered  commencing  with  10,001  and  ending  with  10,56^.  That 
said  bonds  are  on  deposit  in  Safe  No.  3,72^  in  the  Safe  Deposit 
Company's  vault  on  the  corner  of  Montgomery  and  California 
streets,  San  Francisco,  California.  That  said  safe  is  rented  in 
the  name  of  A.  B.,  trustee  for  L.  M.  D.  and  N.  O.  D.,  children  of 
C.  D.,  deceased.  That  the  remainder  of  said  $j63,/42,  to  wit, 
$742,  is  also  in  said  bag  in  said  safe.  That  none  of  the  coupons 
attached  to  said  bonds  have  been  paid.  That  said  children  are 
living  with  their  mother  at  No.  2  Maple  street,  San  Francisco, 
California.  The  postoflfice  address  of  said  cestuis  que  trust  is  No. 
2  Maple  street,  San  Francisco,  California. 

Wherefore  said  trustee  prays  for  a  settlement  of  his  said  ac- 
count. 

Verified. 

NOTE. — After  final  distribution  and  discharge  of  the  executor  the 
court  retains  jurisdiction  of  the  trust  for  the  purpose  of  the  settlement 
of  the  trustees'  accounts.  If  a  settlement  of  the  account  is  prayed  for 
the  clerk  gives  notice  the  same  as  on  settlement  of  an  executor's  ac- 
count: Gal.  C.  C.  P.,  sec.  1699;  Idaho,  Laws  1901,  p.  31;  Montana,  C.  C. 
P.,  sec.  2900;  North  Dakota,  Probate  Code,  sees.  6530,  6536;  South  Da- 
kota, Probate  Code,  sees.  324-331;  Utah,  Eev.  Stats.,  sees.  3977,  3979. 


No.  1533. — Return  of  Sheriff — Service    on  Foreign    Corpora- 
tion. 

[Title  of  Court  and  Cause.] 

I  hereby  certify  that  on  the  20th  day  of  March,  ipo^,  I  re- 
ceived the  within  summons,  and  on  the  12th  day  of  March,  1905, 
in  said  city  and  county  of  San  Francisco,  personally  served  the 
same  upon  the  defendant  therein  named,  the  M.  R.  Life  Insur- 
ance Company,  a  foreign  corporation  .then  doing  business  in  this 
state,  by  then  and  there  delivering  personally  to  C.  M.  O.,  as, 
and  who  then  was,  the  managing  agent  in  this  state  of  said  cor- 
poration, and  also  as,  and  who  then  was,  by  said  corporation  desig- 
nated as  the  person  upon  whom  shouW  be  served  process  issued 
under  the  laws  of  this  state  against  said  corporation,  a  copy  of 
said  summons,  and  attached  thereto,  a  copy  of  the  complaint  in 
said  action  filed. 

NOTK — The  California  laws  require  foreign  corporations  to  designate 
an  agent  on  whom  process  may  be  served.  The  courts  hold  that  where 
a  sheriff  returns  that  he  served  the  instrument  on  a  defendant  the  legal 
prosumption  is  that  as  to  such  service  the  party  served  was  such  agent; 
Drake  v.  Duveniek,  45  Cal.  455. 


Request — Sale  of  Real  EIstat^  913 

REQUEST. 


No.   1534. — Request  for  Aj>pointment  of  Execator — Adminis- 
trator. 

[Title  of  Court  and  Estate.] 

Whereas,  H.  S.  has  petitioned  said  court  to  be  appointed  ad- 
ministrator of  the  estate  of  said  S.  W.,  deceased,  he  not  being  en- 
titled to  receive  said  letters  unless  at  the  request  of  the  person 
entitled  to  letters.  Now  comes  M.  IV.,  the  widow  of  said  S.  IV., 
and  an  unmarried  person,  and,  waiving  her  right  to  be  appointed 
administratrix  of  said  estate  in  favor  of  said  H.  S.,  prays  the  court 
to  grant  the  petition  of  said  H.  S. 

State  of  Nevada, 
County  of  Storey, — ss. 

M.  W.,  being  duly  sworn,  says :  That  she  is  a  resident  of  the 
state  of  Nevada,  county  of  Storey.  That  she  is  unmarried  and 
the  widow  of  S.  IV.,  who  died  in  California,  January  j,  ipo6. 
That  her  husband  was  the  same  person  described  in  the  petition 
of  H.  S.  praying  for  letters  of  administration,  filed  in  tlie  su- 
perior cotui:  of  the  dty  and  county  of  San  Francisco  on  January 
28,  igo6. 

NOTE. — In  California  administration  may  be  granted  to  persons  not 
otherwise  entitled  to  it,  at  the  written  request  of  the  person  entitled. 
[When  the  person  entitled  is  a  nonresident  of  the  state  affidavits  taken 
ex  parte  before  any  officer  authorized  by  the  laws  of  this  state  to  take 
acknowledgments  and  administer  oaths  out  of  this  state  may  be  re- 
ceived as  priitui  facie  evidence  of  the  identity  of  the  party] :  Cal.  C.  C. 
P.,  sec  1379;  Arizona,  C.  C,  par.  1661;  Idaho,  C.  C.  P.,  sec.  4055;  Mon- 
tana, C.  C.  P.,  sec.  2448;  Nevada,  Comp.  Laws,  sec.  2834;  North  Dakota, 
Probate  Code,  sec.  6319;  South  Dakota,  Probate  Code,  sec  94;  Wyoming, 
Eev.  Stats.,  sec.  4652. 


SALE  OF  REAL  ESTATE. 


No.  1535. — Sale  of  Real  Estate — Objections  to  Confirmation 

of. 

[Title  of  Court  and  Estate.] 

Now  comes  A.  B.,  a  residuary  legatee  under  the  will  of  the  said 
E.  P.,  deceased,  and  objects  to  the  confirmation  of  sale  by  the 
executor  of  said  will  of  all  that  land  described  as  follows  [de- 
scription], made  on  the  jo(  day  of  June,  1906,  to  O.  F.  for  $10,- 
S37>  i^^po"  the  ground  that  a  fair  value  for  said  real  estate  is  not  T 
less  tlian  %20.ooo.  and  because  the  said  executor  did  not  follow 
New  Forms — 58 


914  New  Book  of  Forms. 

business  methods  in  advertising  said  sale,  and  because  upon  a 
resale,  properly  advertised,  said  real  estate  ought  to  bring  at  least 
$1^,000. 

NOTE.— California,  C.  C.  P.,  sec,  1553;  Alaska,  Codes,  pt.  4,  e.  85,  sees. 
840,  841;  Arizona,  C.  C,  par.  1793;  Idaho,  C.  C.  P.,  sec.  4190;  Montana,  C, 
C.  P.,  sec.  2686;  New  Mexico,  Comp.  Laws,  sees.  1946-2020;  North  Da- 
kota, Probate  Code,  see,  6440;  South  Dakota,  Probate  Code,  see.  216; 
Washington,  Ballinger's  Codes,  sec.  6273;  Wyoming,  Eev.  Btats.,  sec 
4795. 


No.  1536. — Sale  of  Real  Estate — Objections  to. 

[Title  of  Court  and  Estate.] 

Now  comes  A.  B.,  an  heir  at  law  of  the  said  C.  D.,  deceased, 
and  objecting  to  the  court's  granting  the  administrator  of  the  es- 
tate of  said  deceased  authority  to  sell  the  real  estate  described  in 
his  petition,  states  that  the  rents  and  interest,  money  due  the 
estate  and  money  on  hand,  are  more  than  sufficient  to  pay  all 
debts  of  the  estate  and  the  expenses  of  administration.  That  it 
is  not  true,  as  stated  in  the  application  for  an  order  to  sell  said 
real  estate,  that  it  is  for  the  best  interests  of  said  estate  that  said 
property  should  be  sold. 

Wherefore  this  objector  prays  that  said  application  be  denied. 

NOTE.— California,  C.  C.  P.,  sec.  1518;  Alaska,  Codes,  pt.  4,  e.  85,  sees. 
835-839;  Arizona,  C.  C,  par.  1765;  Idaho,  C.  C.  P.,  see.  4159;  Montana, 
C.  C.  P.,  see.  2643;  Nevada,  Comp.  Laws,  see.  2910;  New  Mexico,  Comp. 
Laws,  sees.  1946,  2020;  North  Dakota,  Probate  Code,  sec.  6436;  South 
Dakota,  Probate  Code,  sees.  201-209;  Washington,  Ballinger's  Codes,  sec 
6251;   Wyoming,   Rev.   Stats.,  sec.  4770. 


STIPULATION. 


No.  1537. — Stipulation  Transferring  Case. 

[Title  of  Court  and  Cause.] 

It  is  hereby  stipulated  that  the  above-entitled  action  may  be 
transferred  to  tlje  superior  court  of  the  county  of  Yuba  because 
of  the  disqualification  of  the  judge  of  the  above-entitled  court  in 
which  said  action  is  pending. 

(All  courts.) 

NOTE. — If  an  action  or  proceeding  is  commenced  or  pending  in  a 
court  and  the  judge  or  justice  thereof  is  disqualified  to  try  the  case,  it 
may  be  transferred  to  a  court,  the  parties  may  agree  upon  by  stipula- 
tion in  writing,  or  made  in  open  court  and  entered  upon  the  minutes: 
Cal.  C.  C.  P.,  see.  398. 


Stipulation.  915 


No.    1538. — Stipulation — Deposition    to    Take. 

[Title  of  Court  and  Cause.] 

It  is  hereby  stipulated  that  the  deposition  of  R.  C,  a  witness 
on  behalf  of  the  plaintilt  in  the  abuvc-eniiilcd  action,  mny  be 
taken  before  M.  S.,  a  notary  public  in  and  for  the  city  and  county, 
of  Sacramento  in  this  state,  at  his  office  in  said  city  and  c^iunty 
on  the  sixth  day  of  June,  igo6,  between  the  hours  of  p  A.  M. 
and  6  P.  M.  of  that  day,  and  if  not  comi'leU'd  on  thrit  riav.  mav 
be  continued  from  day  to  day  successively  thereafter,  and  over 
Sundays,  at  the  same  place,  until  completed.  [And  when  so  taJien, 
the  said  deposition  may  be  used  on  the  trial  of  said  action,  sub- 
ject to  'he  same  objection  (except  as  to  the  form  of  interroga- 
tories), as  if  the  said  witness  were  there  personally  present  atid 
testifyin  g  th  erein.  ] 

(All  courts.) 

NOTE. — The  Code  of  Civil  Procedure  provides  that  notice  to  take  a 
deposition  must  be  given  and  served  uMon  the  adverse  )>arty.  and  in  sonio 
cases  an  affidavit  must  be  made  and  filed.  (See  "Notice"  and  "Af- 
fidavit,.'') Frequently  it  is  stipulated  that  a  deposition  may  be  taken 
which  seems  to  waive  the  making  and  filing  of  the  affidavit;  but  it  is  al- 
ways necessary  to  file  the  stipulation  with  the  clerk  of  the  court  unless 
the  agreement  is  made  in  o])on  court  and  entered  on  the  minutes.  It 
ought,  strictly,  to  be  done  before  the  deposition  is  taken,  but  often  it  is 
n(Mth(  r  written  nor  07itrrfd  in  the  minutes.  Tho  statute  does  not  say 
when  it  must  be  entered  in  the  minntes  or  filed.  The  cases  hereafter 
cited  construe  the  statute  liberally.  An  attorney  has  authority  "to  bind 
his  client  in  any  of  the  steps  of  an  action  or  i)roceeding  by  agreement 
filed  with  the  clerk,  or  entered  upon  the  minutes  of  tbi^  court,  and  nrih 
otherwis€. "  In  such  matters  an  "agreement"  is  a  stipnlation:  Cal.  C. 
C.  P.,  sec.  2S.S;  Alaska,  Codes,  pt.  4,  c.  7fi,  sec.  7.^.7;  Idaho.  ('.  C.  P..  sec. 
309.5;  Montana,  C.  C.  P.,  see.  398;  Nevada,  Comp.  Laws,  sec.  2621;  North 
Dakota,  Political  Code,  sec.  429;  Oregon,  Codes  and  Statutes,  sec.  lOSS^; 
South  Dnkot.%  Penal  Code,  sec  n99;  Utah,  Rev.  Stats.,  sec  115;  Washing- 
ton, Ballinger's  Codes,  sec.  4766. 

Who  I'  ay  Stipulate. — Where  a  party  appears  by  attorney,  the  attor- 
ney has  the  exclusive  right  to  manage  the  case:  Estate  of  Arguello,  50 
Cal.  308.  A  party  who  appeared  by  attorney  signed,  in  the  temporary 
absence  of  his  attorney,  a  stipulation  giving  time  to  file  a  statement. 
The  court  disregarded  it:  Mott  v.  Foster,  45  Cal.  72. 

Consideration  for. — The  consideration  may  be  established  by  parol, 
and  by  parol  shown  that  it  has  failed.  In  such  case  the  party  causing 
th  •  failure  cannot  invoke  the  agreement.  It  does  not  follow  that  a  eon- 
Bideration  is  necessary;  but  if  there  is  one  it  seems  to  control  the  writ- 
ing or  minute  entry:   Raymond  v.  McMullen,  90  Cal.   122,  27   Pac.   21. 

Admissions. — If  it  is  admitted  that  an  oral  stipulation  was  made,  it 
cannot  be  enforced,  yet  there  was  an  admission  of  an  oral  agreement  to 
extejid  the  time  for  answer  which  defendant  relied  upon,  but  judgment 
by  default  was  entered  against  him.  The  supreme  court  said  the  judg- 
ment must  be  set  aside:  Johnson  v.  Sweeney,  95  Cal.  304,  30  Pac.  5td.  In 
that  ease  the  court  said  that  if  a  denial  had  been  pleaded  that  the  stvpu- 


9i6 


New  Book  of  Forms. 


lation  was  mado,  tlip  judgment  would  not  be  distnrbod,  but  the  oral  agree- 
ment being  admitted,  "there  is  no  reason  for  the  application  for  the  rule, 
an  ".  it  is  too  late  to  repudiate  the  stipulation  after  it  has  been  executed." 

Oral  Stipulations  not  Binding. — But  if  reliance  is  reposed  in  the  word 
of  a  reputable  attorney  (all  attorneys  are  reputable  until  disbarred),  and 
if  the  reputable  attorney  repudiates  his  stipulation,  the  oral  stipulation 
will  be  disregarded,  and  relief  granted  on  the  ground  of  surprise:  Robert- 
son V.  Williams.  81  Cal.  268.  Oral  stipulations  will  be  regarded  so  far 
as  they  are  admitted  by  the  party  against  whom  they  are  sought  to  be 
enforced:  Rees  v.  Mahoney,  21  Cal.  30.5.  If  the  stipulation  is  made  in 
open  court  and  not  entered  in  the  minutes  at  the  time  it  was  made,  an 
order  directing  it  to  be  entered  nnnr  pro  tunr  is  void:  Borkheim  v.  North 
British  Ins.  Co..  38  Cal.  623.  In  California  it  has  been  said  that  "where 
an  oral  agreement  for  an  extension  of  time  to  answer  or  demur  is  ad- 
mitted, and  has  been  relied  upon  by  the  defendant,  a  judgment  by  de- 
fault taken  against  him  in  violation  of  the  stipulation  should  be  set 
aside":  Johnson  v.  Sweeney,  95  Cal.  304.  30  Pac.  540.  Oral  statement  or 
admission  made  at  a  trial  and  not  entered  upon  the  minutes  may  be 
acted  upon  by  the  court,  nor  need  the  minutes  be  amended  to  show  the 
stipulation :  but  the  stipulation  may  be  shown  in  the  statement  or  other 
record  on  motion  for  new  trial:  Greiss  v.  State  Investment  Co.,  93  Cal. 
411,  28  Pac.  1041.  The  provision  of  the  Code  of  Civil  Procedure,  which 
provides  that  an  attorney  can  only  bind  his  client  by  his  agreement 
"filed  with  the  clerk  or  entered  upon  the  minutes  of  the  court,  and  not 
otherwise,"  does  not  enlarge  or  abridge  the  authority  of  the  attorney. 
Its  provisions  refer  to  executory  agreements,  and  not  to  those  which  have 
been  wholly  or  in  part  executed :  Smith  v.  Whittier,  95  Cal.  279,  30  Pac. 
529. 

Time  of  Filing. — Such  stipulations  are  filed  in  time  if  they  are  on  file 
when  the  court  is  called  upon  to  act  upon  the  matter  affected  by  the 
stipulation:  Simpson  v.  Budd,  91  Cal.  488,  27  Pac.  758.  If  it  is  not  filed 
nntil  after  the  entry  of  judgment,  the  party  signing  is  estopped  from  ob- 
jecting: Dougherty  v.  Friermuth,  68  Cal.  240,  9  Pac.  98.  It  was  stipulated 
that  the  testimony  of  a  witness  taken  in  another  action  might  be  used  in 
an  action  to  be  tried  thereafter.  The  witness  died  before  the  testimony 
was  offered  in  evidence.  Held,  that  the  death  of  the  vritness  prior  to  the 
withdrawal  of  the  unfiled  stipulation  rendered  the  agreement  irrevocable, 
and  the  filing  of  the  stipulation  made  is  binding  upon  the  parties  "as 
from  its  date":  Smith  v.  Whittier,  95  Cal.  279,  30  Pac.  529. 

"Though  stinulations  do  not  bind  the  parties  until  filed,  yet  wh^n 
filed  they  do  bind  the  parties,  and  may  be  used  to  show  that  a  party  has 
violated  his  stipulation  and  as  a  basis  of  relief  to  the  person  who  has 
been  injured  by  trusting  to  it":  Cooper  v.  Gordon,  125  Cal.  296,  57  Pac. 
1006.  This  and  all  the  cases  cited  in  this  note  appear  to  be  in  harmony 
with   the  statute  and  the  rules   of  statutory  construction. 


SUBPOENA. 


No.    1539. — Subpoena — Civil   Proceedings. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California,  Send  Greeting  to  7.  S., 
and  L.  D.  J.: 
We  command  you  that  all  and  singular,  business  and  excuses 
being  laid  aside,  you  appear  and  attend  before  our  said  superior 


Subpoena,  917 

conrt  of  the  city  and  county  of  San  Francisco,  state  of  Califor- 
nia, at  a  session  of  said  court  to  be  held  at  the  courtroom  of  said 
court  [Department  No.  i],  in  the  A^cw  City  Hall,  in  said  city  and 
county  of  San  Francisco,  on  the  twenty-hrst  day  of  December, 
igo6,  at  10  o'clock  A.  M.,  then  and  there  to  testify  in  the  above- 
stated  cause,  now  pendinf^:  in  said  superior  court,  on  the  part  of 
the  plaintiff ;  and  for  a  faihire  to  attend  you  will  be  deemed  guilty 
of  contempt  of  court,  and  liable  to  pay  all  losses  and  damages  sus- 
tained thereby  to.  the  parties  aggrieved,  and  forfeit  one  hundred 
dollars  in  addition  thereto. 
(All  courts.) 

NOTE.— California,  C.  C.  P.,  8ec3.  1985-1997.     See,  also,  Pen.  CL,  secs. 
1326-1330. 


No.   1540. — Subpoena  (Nonresident  Witness). 

[Title  of  Court  and  Cause.] 

You  are  commanded  to  appear  before  the  superior  court  of  the 
county  of  Sacramento,  state  of  California,  at  the  courtroom  of 
said  court,  at  the  courthouse  in  the  said  county  of  Sacramento,  on 
the  second  day  of  May,  IQ06,  at  //  o'clock  A.  M.,  as  a  witness 
in  a  criminal  action  prosecuted  by  the  people  of  the  state  of  Cali- 
fornia against  /.  S.,  on  the  part  of  the  people  of  the  state  afore- 
said ;  and  it  appearing  to  the  court  that  you  are  not  a  resident 
of  said  county,  you  are  hereby  ordered  to  attend  as  a  witness  as 
hereinabove  commanded. 

(All  courts.) 

NOTE. — California,  Pen.   C,  sees.    1330,   1331, 


No.   1541. — Subpoena — Affidavit — Secure  Attendance  of  Non- 
resident, 

[Title  of  Court  and  Cause.] 

/.  H.  K.,  district  attorney  of  said  count}\  being  duly  sworn, 
says  that  E.  J.,  resident  of  the  county  of  Monterey,  state  of  Cali- 
fornia, necessary  and  material  witness  for  the  People  in  the  action 
of  the  people  of  the  state  of  California  against  /.  S..  and  he  verilv 
believes  that  the  evidence  of  the  said  E.  J.  is  material,  and  that 
his  attendance  at  the  trial  of  said  action  is  necessary  ;  wherefore 
he  prays  for  an  order  for  the  attendance  of  said  witness, 

[This  is  frequently  indorsed  on  the  subpoena.] 

(All  courts.) 

NOTE.— California,  Pen.  C,  sec.  1330. 


9iS  Kew  Book  of  Forms. 


No.   1542. — Subpoena — Affidavit  of  Service, 
[Title  of  Court  and  Cause.] 

G.  IV.  T.,  of  said  city  and  county,  being  duly  sworn,  says  that 
he  served  the  within  subpoena,  by  showing  the  said  within  origi- 
nal to  each  of  the  following  persons  named  therein,  and  deliver- 
ing a  true  copy  thereof  to  each  of  the  said  persons,  personally, 
on  the  tzveiitieth  day  of  December,  ipo6,  at  the  city  and  county 
of  San  Francisco,  to  wit,  L.  D.  J.,  who  did  not  demand  fees, 
and  /.  S.,  who  demanded  and  received  his  fees — two  dollars, 

(All  courts.) 

NOTE.— California,   C.   C.   P.,   sec.   2009. 


No.  1543. — Subpoena — Certificate  of  Service, 

[Title  of  Court  and  Cause.] 

I  hereby  certify  that  I  served  the  within  subpoena  by  showing 
the  said  within  original  to  each  of  the  following  persons  named 
therein,  and  delivering  a  true  copy  thereof  to  each  of  the  said 
persons  personally,  on  the  twentieth  day  of  December,  iQOj,  at  the 
city  and  county  of  San  Francisco,  to  wit,  L.  D.  J.,  who  -did  not 
demand  fees,  and  /.  S.,  who  demanded  and  received  his  fees — two 
dollars. 

Fees,  $1.00. 

Service,  $2.00. 

Mileage,  $2^.00. 

NOTE.— California,  Pen.  C,  sec.   1328. 


No.  1544. — Subpoena — Criminal  Proceeding. 

[Title  of  Court  and  Cause.] 

You  are  commanded  to  appear  before  the  superior  court  of  the 
county  of  Santa  Barbara,  state  of  California,  at  the  courtroom 
of  said  court,  at  the  courthouse,  in  the  city  of  Santa  Barbara, 
in  said  county,  on  the  twenty-fifth  day  of  January,  JQ06,  at  10 
o'clock  A.  M.,  as  witness  in  a  criminal  action  prosecuted  by  the 
people  of  the  state  of  California  against  said  /.  5*.  on  the  part 
of  the  people  of  the  state  aforesaid. 

Given  under  my  hand  this  tenth  day  of  January,  ipo6. 

INDORSEMENT    OF    SERVICE. 

I  hereby  certify  that  I  have  served  the  within  subpoena  by 
showing  the  within  original  to  the  within  named  S.  H.  and  A.  J. 


Subpoena.  919 

personally,  and  informing  each  one  of  them  of  the  contents  there- 
of, on  or  prior  to  the  third  day  of  June,  igo6,  at  the  county  of 
l<lapa. 

NOTE. — In  California  a  subpoena  may  be  sifted  and  issued  by:  1.  A 
magistrate  before  whom  a  complaint  is  laid  for  a  witness  in  the  state, 
either  on  behalf  of  the  people  or  of  the  defendant;  2.  The  district  at- 
torney for  witnesses  in  the  state  in  supjKjrt  of  the  prosecution,  or  for 
Buch  other  witnesses  as  the  grand  jury,  upon  an  investigation,  pending 
before  them,  may  direct;  3.  The  district  attorney  for  witnesses  in  the 
state,  in  support  of  an  indictment  or  information,  to  appear  before  the 
court  in  which  it  is  to  be  tried;  4.  The  clerk  of  the  court  in  which  an 
indictment  or  information  is  to  be  tried;  and  he  must,  at  any  time,  upon 
application  of  the  defendant,  and  without  charge,  issue  as  many  blanlc 
subpoenas,  subscribed  by  him  as  clerk,  for  witnesses  in  the  state,  as  the 
defendant  may  require. 

If  books,  papers,  or  documents  are  required,  a  direction  to  the  follow- 
ing effect  must  be  contained  in  the  subpoena:  "And  you  are  required 
also,  to  bring  with  you  the  following."  [Describing  intelligently  the 
books,  papers,  or  documents  required.] 

No  person  is  obliged  to  attend  under  subpoena  out  of  the  county  of 
his  residence  unless  upon  affidavit  of  the  district  attorney,  or  prosecutor, 
or  of  the  defendant,  or  his  counsel,  stating  that  he  believes  the  evidence 
material,  and  his  attendance  and  examination  necessary.  A  justice  of 
the  supreme  court  or  a  judge  of  a  superior  court  indorses  on  the  sub- 
poena an  order  for  the  attendance  of  the  witness:  Pen.  C,  sees.  1326- 
1330.  It  may  be  served  by  any  person.  Service  is  made  by  showing  the 
original  to  the  witness  personally  and  informing  him  of  its  contents: 
Id.  sec.  123S.  If  the  witness  attends  from  out  of  the  county  upon  the 
order  of  the  court,  or  if  /ve  is  poor,  the  court  may  order  his  expenses  paid. 
Id.,    sec.    1329. 

If  served  by  a  sheriff  or  other  peace  officer,  he  must  make  a  written 
return  of  service:  Id.,  sec.  1328. 

Peace  officer,  sheriff,  constable,  marshal,  policeman  of  a  township,  eity 
or  town:  Id.,  sec.  817. 

No.  1545. — Subpoena — Bring  Papers,  etc. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California   to  /.  D.,  R.  R.,  and  J.  S.  : 

You  are  commanded  to  appear  before  the  superior  court  of  the 
county  of  Santa  Clara,  state  of  California,  at  the  courtroom  of 
said  court,  at  the  courthouse,  in  the  city  of  San  Jose,  in  said 
county  [or  before  the  grand  jur>']  on  the  tuenty-iifth  day  of 
January,  1906,  at  10  o'clock  A.  M.,  as  witness  in  a  criminal  action 
prosecuted  by  the  people  of  the  state  of  California  against  Jack 
S.,  on  the  part  of  the  people  of  the  state  of  California,  and 
you.  the  said  J.  S.,  are  required  also  to  bring  zvith  you  and 
hcn'C  before  said  court  a  certain  document  [describing  the  same  so 
that  he  nujy  understand  it,  and  also  a  certain  weapon  or  otiier 
thing  described].  >  \ 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec.   1985. 


920  New  Book  of  Forms. 


No.  1546. — Subpoena  Duces  Tecum — Civil  Proceedings. 
The  People  of  the  State  of  California    Send  Greeting  to  C.  J.: 

We  command  you,  that  all  and  singular  business  and  excuses 
being  laid  aside,  you  appear  and  attend  before  our  said  superior 
court  of  the  city  and  county  of  San  Francisco,  state  of  California, 
at  a  session  of  said  court  to  be  held  at  the  New  City  Hall,  in  the 
city  and  county  of  San  Francisco,  on  the  second  day  of  December, 
1906,  at  10  o'clock  A.  M.,  then  and  there  to  testify  iri  the  above- 
stated  cause,  now  pending  in  said  superior  court,  on  the  part  of 
the  defendant;  and  for  a  failure  to  attend,  you  will  be  deemed 
guilty  of  a  contempt  of  court,  and  liable  to  pay  all  losses  and 
damages  sustained  thereby  to  the  parties  aggrieved,  and  forfeit 
one  hundred  dollars  in  addition  thereto ;  and  that  you  bring  with 
you  and  produce,  then  and  there,  a  certain  hook  being  the  [here 
describe  the  hook  or  paper,  so  that  the  witness  cannot  mistake  it], 
now  in  your  custody. 

(All  courts.) 


No.   1547. — Subpoena — Order — Witness  to  Attend. 

[Title  of  Court  and  Cause.] 

Upon  reading  the  foregoing  affidavit,  it  is  ordered  by  the  Hon- 
orable T.  B.  C,  judge  of  the  superior  court  of  said  county,  that 
E.  J.  do  attend  as  witness  before  the  honorable,  the  superior  court, 
at  the  courthouse  of  said  county,  as  commanded  by  the  foregoing 
subpoena. 

Done  at  the  courtroom  of  said  court,  in  the  county  of  Santa 
Barbara,  this  twenty-second  day  of  January,  igo6. 

(All  courts.) 

[To  be  indorsed  on  subpoena.] 

NOTE. — When  a  witness  who  lives  out  of  the  connty  is  to  be  snra- 
moned,  an  affidavit  is  necessary,  and  also  the  judge  must  indorse  on  the 
subpoena  an  order  for  his  attendance:  Cal.  Pen.  C,  sec.  1330. 


No.    1548. — Subpoena — Return   of. 

[Title  of  Court  and  Cause.] 

I  hereby  certify  that  I  served  the  within  subpoena  on  the 
twenty-second  day  of  January,  ipo6,  on  /.  D.,  Ji.  R.  and  J.  S., 
being  the  witnesses  named  in  said  subpoena,  at  the  county  of  Santa 
Clara,  by  showing  the  original  to  each  of  said  witnesses  per- 
sonally, and  informing  each  of  them  of  the  contents  thereof. 

NOTE. — California,  Pen.  C,  sec.  817. 


Subpoena.  921 


No.  1549. — Subpoena — Application  for  to  Compel  a  Subscrib- 
ing Witness  to  Attend  Before  an  Officer  to  Prove  the 
Execution  of  a  Conveyance. 

To  /.  M.,  Esq.,  Notary  Public   [or  Other  Officer  Authorized  to 
Take  Acknowledgments]    of  the   City   and   County  of  San 
Francisco : 
I,  E.  F.,  do  hereby  make  application  to  you  to  issue  a  subpoena, 
requiring  A.  B.  to  appear  and  testify  before  you,  touching  the 
execution  of  a  certain  conveyance  of  real  estate,  made  and  exe- 
cuted by  C.  D.,  to  me,  the  said  B.  F.  [or  if  the  application  is  made 
by  the  heir  or  personal  representative  of  the  grantee,  name  such 
grantee],  and  to  which  the  said  A.  B.  is  z  subscribing  witness; 
the  said  A.  B.  having  refused,  upon  my  request,  to  appear  and 
testify  touching  the  execution  of  the  said  conveyance ;  and  the 
same   not  having  been   proved   or  acknowledged,   cannot  be   so 
proved  or  acknowledged  without  the  evidence  of  the  said  A.  B. 
Dated  the  2d  day  of  May,  1905. 

Subscribed  and  sworn  to  before  me  this  2d  dav  of  May,  igof^. 

J.  M., 
Notary  Public. 

NOTE.— California,  C.   C,  sec.   1201. 


tTo.  1550. — Subpoena. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California  Send  Greeting  to  D.  B.: 

We  command  you  that  all  and  singular,  business  and  excuses 
being  set  aside,  you  api)ear  and  attend  before  the  undersiiri^.ed, 
J.  M.,  a  notary  public  in  and  for  the  city  and  county  of  San  Fran- 
cisco, state  of  California,  at  my  office  in  the  Merchants'  Bxchange 
Building,  in  said  city  and  county,  on  the  sd  day  of  May,  A.  D. 
190^,  at  10  o'clock  A.  M.,  then  and  there  to  testify  in  the  above- 
entitled  cause  now  pending  in  said  superior  court,  on  the  part  of 
plaintiff,  and  for  failure  to  attend  you  will  be  deemed  .guilty  of 
contempt  of  court,  and  liable  to  pay  all  losses  and  damages  sus- 
tained thereby  to  the  parties  aggrieved,  and  forfeit  one  hundred 
dollars  in  addition  thereto,  and  then  and  there  produce  the  follow- 
ing described  books  and  papers:    [Describing  them.] 

Date  the  ist  day  of  May,  A.  D.  1903. 

Attest  my  hand  and  the  seal  of  my  office,  the  day  and  year  last 
above  writteio. 

/.  M., 
Notarv  Public. 


922  New  Book  of  Forms. 

XOTE.— C.  C.  P.,  see.  1986;  C.  C,  sec.  1201. 

Subpoena  Ijy  Officers  Authorized  to  Administer  Oaths  or  Take  Testi- 
mony.— Officers,  who  are  authorized  by  the  laws  of  California  to  admin- 
ister oaths  or  to  take  testimony,  such  as  judges,  justices  of  the  peace, 
notaries  public,  commissioners  of  courts,  and  all  others  authorized  to 
take  acknowledgments  and  proof  of  the  execution  of  written  instruments, 
may  issue  a  subpoena  for  a  witness  to  appear  before  him  and  testify 
as  provided  in  sections  1985-1997,  Code  of  Civil  Procedure.  Nonjudi- 
cial officers  are  by  said  sections  given  authority  to  issue  subpoenas  to 
fine,  arrest,  and  imprison  those  who  refuse  to  obey  their  citations;  but 
it  has  been  held  by  the  supreme  court  of  California  that  such  authority 
cannot  be  conferred  by  statute  upon  nonjudicial  officers,  such  as  notaries 
public,  under  the  state  constitution.  But  notwithstanding  their  lack  of 
such  power,  a  witness  disobeying  their  subpoena  is  liable  to  an  action 
for  damages  for  his  disobedience  under  the  sections  above  noted  and  un- 
der section  1192,   Civil   Code. 

Such  recalcitrant  would,  it  seems,  be  liable  to  punishment  for  misde- 
meanor contempt  under  section  657,  Penal  Code.  Therefore,  it  is  im- 
portant that  formal  application  be  made  and  subpoenas  issued,  served 
and  returned  substantially  as  suggested  in  the  above  and  following 
forroB. 

It  would  seem  to  be  a  duty  which  a  well-balanced  notary  public  or 
ocher  officer  owes  to  the  law  which  gave  him  official  birth,'  that  upon 
such  disobedience  some  one  in  authority  would  be  stimulated  to  make 
an  efiort  to  either  punish,  annoy,  discommode,  vex,  discomfort,  or 
frighten  every  recalcitrant  that  refuses  to  respond  to  a  summons  given 
"In  the  Name  of  the  People  of  the  State  of  California." 


No.   1551. — Subpoena — Affidavit  to  be  Indorsed  on   Original 

Subpoena. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

A.  P.,  being-  duly  sworn  says,  that  on  the  2d  day  of  May,  1905, 
in  said  city  and  county,  he  served  the  within  subpoena  on  A.  B., 
therein  named,  personally,  by  then  and  there  showing  him  the 
same,  and  delivering  to  him  a  true  copy  thereof,  and  by  paying- 
[or,  "tendering"]  to  him  the  sum  of  $2.00  for  his  fees  for  traveling 
to  the  place  specified  in  the  said  subpoena,  and  for  his  attendance 
in  pursuance  thereof. 

Sworn  to  before  me,  this  2d  day  of  May,  ipoj. 

J.  M., 
Notary  Public 

NOTE.— California,   a   C.  P.,  aec   2209, 


Summons.  9-3 


SUMMONS. 


No.   1552. — Summons — General. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California  Send  Greeting  to  A.  B.  C, 
Defendant : 

You  are  hereby  directed  to  appear  and  answer  the  complaint  in 
an  action  entitled  as  above,  brought  against  you  in  the  superior 
court  of  the  county  of  Butte,  state  of  California,  within  ten  days 
after  the  service  on  you  of  this  summons — if  served  within  this 
county,  or  within  thirty  days  if  served  elsewhere. 

And  you  are  hereby  notified  that  unless  you  appear  and  answer 
as  above  required,  the  said  plaintiff  will  take  judgment  for  any 
money  or  damages  demanded  in  the  complaint,  as  arising  upon 
contract,  or  he  will  apply  to  the  court  for  any  other  relief  de- 
manded in  the  complaint. 

NOTE. — California,  C.  C.  P.,  sec.  407;  Alaska,  Codes,  pt.  4,  c.  4,  sees. 
42-53;  Arizona,  C.  C,  pars.  1314,  1316;  Idaho,  C.  C.  P.,  sees.  3190-3194; 
Montana,  C.  C.  P.,  sees.  630-643;  Nevada,  Comp.  Laws,  sec.  3121;  New 
Mexico,  Comp.  Laws,  sec.  2685,  subds.  18,  19;  North  Dakota,  C.  C.  P., 
sec.  8414;  Oregon,  Codes  and  Statutes,  sec.  2201;  South  Dakota,  C.  C. 
P.,  sees.  104,  105;  Utah.  Rev.  Stats.,  sec.  2939;  Washington,  Ballinger's 
Codes,  sees.  4869-4872;   Wyoming,  Eev.  Stats.,  sees.   35U7-3519. 


No.    1553. — Summons — Eminent    Domain    (Condemnation    of 

Land) . 

[Title  of  Court  and  Cause.] 

The  People  of  the  btate  of  California  Send  Greeting  to  A.  B.,  a 
Corporation,  C.  D.,  E.  F.  and  G.  H.: 

The  above-entitled  action  is  brought  by  the  plaintiff  to  condemn 
a  right  of  way  through  that  tract  of  land  situated  in  the  city  and 
county  of  San  Francisco,  state  of  California,  and  bounded  and  de- 
scribed as  follows,  to  wit:  [Description  of  the  whole  property.] 
Said  right  of  way  consists  of  a  strip  of  land  for  a  double  track  of 
the  plaintiff's  road  between  [particularjy  describe  the  strife]. 
Reference  is  made  to  the  complaint  herein  for  a  description  of  the 
respective  parcels  of  said  tract  of  land. 

And  you.  and  each  of  you,  are  hereby  notified  to  appear  and 
show  cause  why  the  property  described  should  not  be  condemned 


9^4  New  Book  of  Forms. 

as  prayed  for  in  the  complaint  within  ten  days  after  the  service  on 
you  of  this  summons — if  served  within  this  county ;  or  within 
thirty  days  if  served  elsewhere. 

And  you  are  hereby  notified  that  unless  you  appear  and  answer 
as  above  required,  the  said  plaintiff  will  take  judgment  for  any 
money  or  damages  remanded  in  the  complaint,  as  arising  upon 
contract,  or  it  will  apply  to  the  court  for  any  other  relief  de- 
manded in  the  complaint. 

NOTE.— California,  C.  C,  sec.  124.5;  Arizona,  C.  C,  pars.  2453,  2454; 
Idaho,  C.  C.  P.,  sec.  3848;  Montana,  C.  C.  P.,  sec.  2218;  Nevada,  Comp. 
Laws,  sees.  3121,  3919;  New  Mexico,  Comp.  Laws,  sec.  2685,  subds.  17, 
18;  North  Dakota,  C.  C.  P.,  sec.  8414;  Oregon,  Codes  and  Statutes,  sec. 
5098;  South  Dakota,  C.  C.  P.,  sec.  867;  Utah.  Rev.  Stats.,  sees.  2939,  3593; 
Washington,  Ballinger's  Codes,  sees.   779,  780. 


No.   1554. — Summons — Partition  of  Land, 
[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  Calif omia  Send  Greeting  to  G.  E.  B. 
and  M.  G.  S.,  Executor  of  the  Last  Will  of  S.  D.,  Deceased, 
and  all  Joint  Tenants  and  Tenants  in  Common,  and  all  Per- 
sons having  any  Interest  in  or  Liens  of  Record  by  Mortgage, 
Judgment,  or  Otherwise,  upon  the  Property  Hereinafter  De- 
scribed or  any  Part  Thereof,  and  to  all  Persons  Unknown 
Who  Have  or  Claim  any  Interest  in  that  Real  Property, 
Bounded  as  Follows   [Description],  Defendants.' 

You  are  hereby  directed  to  appear  and  answer  the  complaint  in 
an  action  entitled  as  above,  brought  against  you  in  the  superior 
court  of  the  city  and  county  of  San  Francisco,  state  of  California, 
within  ten  days  after  the  service  on  you  of  this  summons,  if  served 
within  said  city  and  county,  or  within  thirty  days  if  served  else- 
where. 

And  you  are  hereby  notified  that  unless  you  appear  and  answer 
as  above  required,  the  said  plaintiff  will  take  judgment  for  any 
money  or  damages  demanded  in  the  complaint  as  arising  upon  con- 
tract, or  will  apply  to  the  court  for  any  other  relief  demanded  in 
the  complaint,  including  the  partition  of  the  real  property  herein- 
before described. 

NOTE. — This  summons  makes  the  property  sought  to  be  divided  and 
described  in  it  a  party  defendant,  and  also  all  persons  unknown  who 
have  an  interest  in  the  property.  The  conclusion  of  the  summons  re- 
fers to  the  partition  prayer  of  the  complaint.  Such  matter  is  clearly 
unnecessary  under  Code  of  Civil  Procedure,  section  407.  (See  Sum- 
mons.) Such  matter  may  be  entirely  unnecessary,  but  in  San  Fran- 
cisco it  would  be  difficult  to  secure  a  loan  secured  by  mortgage  on  the 


Summons.  925 

land  partitioned  in  an  action  where  service  was  by  publication,  or  ju<1g- 
mcnt  by  default  had,  upon  a  summons  minus  such  reference.  The  stat- 
ute directs  the  summons  to  be  directed  precisely  aa  in  thia  form:  Cal. 
a  C.  P.,  sec  756. 

No.     1555. — Summons — Forcible    Entry    and    Unlawful    De- 
tainer— General. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California  Send  Greeting  to  H.  S., 
Defendant: 

You  are  hereby  required  to  appear  and  answer,  on  or  before 
Monday,  the  12th  day  of  August,  ipo6,  the  complaint  filed  in  an 
action  brought  against  you  by  the  above-named  plaintiff  (G.  H., 
Esq.),  in  the  superior  court  of  the  county  of  Sierra,  or  judgment 
by  default  will  be  taken  against  you,  according  to  the  prayer  of 
said  complaint. 

The  said  action  is  brought  to  recover  possession  of  those  cer- 
tain premises  situated  in  the  town  of  Downiez'ille,  county  of 
Sierra,  state  of  California,  and  described  as  follows,  to  wit :  That 
house  known  as  the  Globe  Hotel,  being  No.  ^726,  Shipley  street, 
in  said  town,  which  is  alleged  to  be  unlawfully  detained  by  you, 
after  default  in  the  payment  of  rent,  pursuant  to  the  lease  or 
agreement  under  which  you  hold  possession  of  said  premises ;  and 
also  to  recover  the  sum  of  $S5^>  rent  unpaid  and  now  due  and 
owing  by  you  to  the  above-named  plaintiff  for  one  month's  rent 
of  said  premises,  and  also  such  further  sum  as  may  accrue  from 
the  time  of  filing  the  complaint  in  the  above-entitled  action  to  the 
rendition  of  judgment  in  said  action;  and  also,  that  the  amount 
found  due  for  rent  may  be  trebled,  and  made  payable  in  gold 
coin;  and  also  for  costs  of  this  suit;  and  also  that  by  said  judg- 
ment it  be  declared  that  the  lease  or  agreement  under  which  you 
hold  said  demised  premises  be  forfeited.  And  it  is  directed  that 
this  summons  be  served  on  the  defendsr.t  herein  at  least  two  days 
before  the  return  day  designated  herein,  and  the  return  day  is 
August  12,  1906. 

And  you  are  hereby  notified  that  if  you  fail  to  appear  and  an- 
swer the  said  complaint  as  above  required,  the  relief  therein  sought 
will  be  taken  against  you. 

NOTE. — The  summons  must  state  the  parties,  the  court,  and  the  nature 
of  the  action  in  concise  terms,  the  relief  sought,  the  return  day,  and 
must  notify  the  defendant  to  appear  and  answer  within  the  time  desig- 
nated, and  if  he  does  not,  the  relief  sought  will  be  taken  against  him. 
It  must  be  served  at  least  two  days  before  the  return  day  and  must 
be  described  to  the  defendant,  and  must  be  served  and  returned  in  the 
Bame  manner  as  summons  in  a  civil  action:  Cal.  C.  C.  P.,  sees.  1166, 
1167;  Arizona,  C.  C,  par.  2673;  Idaho,  C.  C.  P.,  sec.  3983;  Montana,  C- 
C.   P.,  sec.   2088;   Nevada,   Comp.   Laws,   sees.   3842,   3855;   New  Mexico, 


926  New  Book  of  Forms. 

Corap.  Laws.  sec.  2685,  subds.  17,  18;  North  Dakota,  J.  C,  sec.  6637; 
Oregon,  Codes  and  Statutes,  see.  5749;  South  Dakota,  J.  C,  sec.  13; 
Utah,  Rev.  Stats.,  sec.  3580;  Washincrton,  Ballingcr's  Codes,  see.  5532, 
5533;   Wyoming,  lie  v.  Stats.,  sees.  4488. 

No.   1556. — Summons  of  Juror. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Napa, — ss. 

To  R.  R.: 

You  are  hereby  summoned  to  appear  in  the  superior  court  of  the 
county  of  Napa,  state  of  California,  at  the  opening  of  the  regular 
session  thereof,  at  the  courtroom  of  said  court,  in  the  courthouse 
in  said  county,  on  the  eighth  day  of  September,  ipo6,  at  10  o'clock 
A.  M.,  to  serve  as  a  trial  juror,  and  herein  fail  not 

(All  courts.) 

NOTE.— For  courts  of  record,  C.  C.  P.,  sees.  225-228.  For  courts  not 
of  record,  Id.,  sees.  230-232.  To  complete  panel,  In.,  237.  For  inquests, 
Id.,  235.     To  serve  one  year,  Id.,  see.  210. 


VENIEE. 


No.   1557. — Venire — Certificate,   Clerk*s. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Alameda, — ss. 

I,  A.  R.,  county  clerk  of  the  county  of  Alameda,  hereby  certify 
that  on  ^4onday,  the  eleventh  day  of  July,  igo6,  the  superior  court 
of  the  county  of  Alameda  made  an  order,  directing  a  trial  jurv% 
consisting  of  fifty  jurymen,  to  be  drawn  and  summoned  to  attend 
before  said  court,  on  Monday,  the  tzventy-Hfth  day  of  July,  ipo6, 
at  the  courtroom  of  said  court,  in  the  city  of  Oakland,  in  said 
county  of  Alameda.  That  immediately  upon  the  order  aforesaid 
being  made,  to  wit,  on  said  eleventh  day  of  July,  ipo6,  I  did,  in 
the  presence  of  said  court,  draw  from  the  "jury  box,"  as  by  law 
directed,  the  names  of  fifty  qualified  jurymen,  as  follows: 

No.  Name.  No.  Name. 

I.         Dennis  Camron.  2.     Patrick  W.  Tyler, 

[naming  the  whole  panel.] 
Therefore,  to  the  Sheriff  of  said  County,  Greeting: 

You  are  commanded  to  summon  the  above-named  jurors  to  be 
and  appear  in  the  superior  court  of  the  county  of  Alameda,  to  be 


Venire — Verification.  927 

held  in  the  courtroom  of  said  court,  at  the  courthouse,  in  the  said 
county,  on  the  tzvcnty-Hfth  day  of  July,  jgo6,  at  10  o'clock  A.  M., 
to  act  as  trial  jurors,  and  of  this  writ  make  legal  service  and  due 
return. 

NOTE. — California,  C.  C.  P.,  sees.   219,  220. 


No.  1558. — Venire — Special, 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

To  the  Sheriff  of  said  County,  Greeting: 

You  are  hereby  commanded  to  summon  from  the  body  of  your 
county  tzventy-four  good  and  lawful  men,  to  be  and  appear  in  the 
superior  court  of  the  city  and  county  of  San  Francisco,  Depart- 
ment No.  5,  to  be  held  in  the  courtroom  of  said  court,  at  the  AViy 
City  Hall,  in  the  said  city  and  county,  on  the  third  day  of  January, 
ipo6,  at  10  o'clock  A.  M.,  to  complete  the  panel  and  act  as  trial 
jurors,  and  of  this  writ  make  legal  service  and  due  return. 

No.         Name.                      Remarks. 
I.     John  Brown.  

NOTE,— California,  C.  C.  P.,  sees.  226,  227. 


VERIFICATION. 


No.   1559. — Verification — Complaint   or   Answer. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

/.  /.,  being  duly  sworn,  deposes  and  says,  that  he  is  the  plaintiff 
(or  one  of  the  plaintiffs)  in  the  above-entitled  action ;  that  he  has 
heard  read  the  foregoing  complaint  and  knozvs  the  contents  there- 
of ;  that  the  same  is  true  of  his  own  knowledge,  except  as  to  those 
matters  which  are  therein  stated  on  his  information  or  belief,  and 
as  to  those  matters  that  he  believes  it  to  be  true. 


928 


New  Book  of  Forms. 


NOTE. — In  California,  in  all  eases  of  verification  of  a  pleading,  the 
affidavit  of  the  party  mnst  state  that  the  same  is  true  of  his  own  knowl- 
edge, except  as  to  the  matters  which  are  therein  stated  on  his  informa- 
tion or  belief,  and  as  to  those  matters  that  he  believes  it  to  be  true; 
and  where  a  pleading  is  verified,  it  must  be  by  the  affidavit  of  a  party, 
unless  the  parties  are  absent  from  the  county  where  the  attorney  re- 
sides, or  from  some  cause  unable  to  verify  it,  or  the  facts  are  within 
the  knowledge  of  his  attorney  or  other  person  verifying  the  same.  When 
the  pleading  is  verified  by  the  attorney,  or  any  other  person  except  one 
of  the  parties,  he  must  set  forth  in  the  affidavit  the  reasons  why  it  is 
not  made  by  one  of  the  parties.  When  the  complaint  is  verified,  the 
answer  must  be,  unless  an  admission  of  the  truth  of  the  complaint  might 
subject  the  party  to  a  criminal  prosecution  (of  any  nature),  or  unless 
an  officer  of  the  state,  in  his  official  capacity,  is  defendant:  Cal.  C.  C.  P., 
see.  446.  Except  as  aforesaid,  if  the  complaint  is  verified,  the  answer, 
to  be  sufficient,  must  be  verified:  Id.,  sec.  437;  Alaska,  Codes,  pt.  4.  c. 
10,  sees.  71,  72,  217,  219;  Arizona,  C.  C,  par.  1358;  Idaho,  C.  C.  P.,  sec. 
3219;  Montana,  C.  C.  P.,  sec.  730;  Nevada,  Comp.  Laws,  sec.  3150;  New 
Mexico.  Comp.  Laws,  sec.  2685,  subd.  48;  North  Dakota,  C.  C.  P.,  sec. 
5281;  Oregon,  Codes  and  Statutes,  sees.  82,  83;  South  Dakota,  C.  C.  P., 
sec.  134;  Utah,  Eev.  Stats.,  sec.  2983;  Washington,  Ballinger's  Codes, 
see.  4925;  Wyoming,  Rev.  Stats.,  sec.  3576. 

Verification — To  Make  Trae. — Under  the  eommon-lnw  system  a  verifi_- 
eation  consists  merely  of  a  concluding  declaration  of  the  bill,  plea  or 
answer  that  the  pleader  is  prepared  to  shnni  the  truth  of  the  aver- 
ments of  his  pleading.  Under  the  code  system  a  verification  consists 
of  an  affidavit  separate  from,  but  immediately  following  and  a  part  of 
the  pleading,  stating  that  its  averments  are  true  to  the  personal  knowl- 
edge of  the  T)aTty,  save  as  to  the  matters  therein  stated  on  his  inform.a- 
tion  and  belief,  and  as  to  those  matters  that  he  believes  it  to  be  true. 
In  some  states  the  matters  alleged  on  information  and  belief  must  be 
stated  to  be  so  made,  while  in  other  states,  with  like  provisions  in  their 
codes,  the  allegations  made  on  personal  knowledge  and  those  on  informa- 
tion and  belief  need  not  be  distinguished. 

So.  as  to  form  of  affidavit  of  verification,  it  has  been  held,  variously, 
that  it  must,  and  again  that  it  need  not,  contain  the  venue,  the  jurat  and 
the  signatnre  or  mark  of  the  affiant.  So,  also,  as  to  the  separateness  of 
the  affidavit  of  verification,  it  has  been  held  and  again  denied  that  a 
paper  or  pleading  properly  entitled,  but  in  form  an  affidavit  concluding 
with  the  usual  jurat,  is  a  verified  pleading. 

Venue  not  Necessary. — A  board  of  equalization  has  no  power  to  re- 
duce an  assessment  except  upon  written  verified  application:  Pol.  C,  sec. 
3574.  An  application  was  signed  by  C.  &  R.  and  then  the  following 
words  followed,  "Sworn  to  before  me  this  19th  day  of  July,  1881" 
[signed,  A.  B.  W.,  Clerk].  The  court  said:  "This  is  a  compliance  with 
the  statute":  Garrison  v.  Board,  61  Cal.  54. 

In  a  proceeding  to  remove  a  public  officer,  an  accusation  in  writing 
was  filed  commencing  "J.  M.  W.  upon  oath  presents,"  etc.,  "the  fol- 
lowing accusation,"  alleging  certain  facts  sufficient,  if  true,  and  prop- 
erly presented  to  justify  the  officer's  removal.  The  accusation  was 
signed  by  J.  M.  W.  at  the  end,  then  came  the  following:  "Subscribed 
and  sworn  to  before  me  this  26th  day  of  April,  1889.  M.  D.  H  Clerk  " 
and  "Seal." 

In  deciding  the  case  the  court  said  under  the  statute  requiring 
the  accusation  "to  be  verified  by  the  oath  of  a  person,"  the  accusation 
being  signed  at  the  end  by  the  complainant  made  the  whole  document 
an  affidavit:   Woods  v.  Varnum,  85  Cal.  640,  24  Pac.  843, 


Vekification.  929 

"Snrplns  Words." — A  verification  is  sufRcicnt  whioh  stntos  that  A.  B. 
"has  read  the  foregoing  petition,  and  is  acquainted  with  the  contents 
thereof;  that  the  same  ia  true  of  his  own  knowledge  and  belief."  An 
insolvency  proceeding  was  involved.  In  deciding  the  court  said,  "The 
words  'and  belief  mav  be  treated  as  surplusage":  Seattle  Coal  Co.  v. 
Thomas,  57  Cal.  197. 

Construction  of  Words. — It  is  no  ob.iection  to  a  claim  of  lien  that  the 
verification  thoroof  recites  that  "the  facts  stated  therein  are  true,"  in- 
stead of  stnting  that  "the  claim  is  true":  Corbet  v.  Chambers,  109 
Cal.   17S.  41   Pnc.  873. 

Verification  Good  When,  if  False,  "Perjury"  Could  not  be  Asslpmed — 
Actual  Knowledge  not  Necessary. — It  was  claimed  that  where  a  statute 
directs  a  statement  to  be  "verified"  without  prescribing  a  form  of 
verification,  that  the  nffinnt  was  obligated  to  make  affidavit  that  the 
statement  was  true;  because,  it  was  urged,  that  "perjury"  could  not  be 
assigned  if  the  statement  was  untrue,  and  Whitney  Arms  Co.  v.  Bar- 
low, 63  N.  Y.  66,  20  Am.  Rep.  .504,  was  cited.  Opposing  counsel  answered 
saying:  "Such  statements  are  not  required  to  be  verified  m  any  par- 
ticular form;  and  the  verification  need  not  be  unqualified  and  positive"; 
and  Glen's  Falls  Paper  Co.  v.  White,  18  Hun,  21.5,  and  Bonnell  v.  Gria- 
wold.  80  N.  Y.  129,  were  cited. 

The  court  held  that  the  statement  suflSciently  conformed  to  the  require- 
ments of  the  act.  The  manager  of  the  bank  verified  the  statement  as 
follows:  "That  the  foregoing  statement  is  to  the  best  of  his  knowl- 
edge and  belief  a  trne   and  correct  statement." 

The  court  said:  "The  objection  that  the  aflidavit  [verification]  is  not 
positive,  or  made  upon  the  actual  knowledge  of  the  affiant,  is  not  ten- 
able  The  legislature  did  not  intend  to  require  an  affidavit  [verifi- 
cation] of  a  higher  degree  than  could  be  made  on  the  part  of  the 
ofiScer  from  whom  it  is  demanded,  and  when  an  affidavit  Tverificatipn] 
is  to  be  made  of  matters  which  are  presumptively  derived  through  in- 
formation from  others,  it  is  sufficient  if  the  affiant  [verifier]  states 
that  it  is  made  to  the  best  of  his  knowledge  and  belief":  Bank  of  British 
N.  A.  V.  Mndison,  99  Cal.  129,  33  Pac.  762. 

"Legal  Presumption." — It  was  said  in  a  California  case  where  it  ap- 
peared that  an  affida^'^t  contained  the  usual  jurat  and  a  seal  of  a  notary, 
but  did  not  state  a  venue,  that  the  objection  to  the  want  of  venue  can- 
not be  sustained,  "in  view  of  the  facts  and  legal  presumptions  in  this 
case,  even  if  it  be  true  that  the  want  of  a  venue  is  in  general  fatal  to 
an  affidavit."  The  affidavit  was  as  follows:  "D.  M.  B.  v.  F.  W.  In  the 
District  Court  of  the  Second  Judicial  District  of  the  State  of  California, 
in  and  for  the  County  of  Butte."  The  jurat  was:  "Subscribed  and 
sworn  to  before  me  this  24  day  of  April,  1878.  J.  R.  R.,  (Seal  of  No- 
tary) Notary  Public." 

The  court  then  cites  Young  v.  Young,  18  Minn.  94,  and  Barnard  v. 
Darling,  1  Bnrb.  Ch.  176,  to  the  point  that  the  absence  of  a  venue  is  not 
fatal:  Reavis  v.  Cowell,  56  Cal.  583.  The  "legal  presumption"  referred 
to  is  based  upon  the  presumption  that  the  notary  "acted  within  his 
jurisdiction. ' ' 

It  is  difficult  to  understand  what  connection  there  was  between  the 
power  of  a  notary  public  to  administer  an  oath,  and  the  question  of  law 
whether  the  affida\nt  was  properly  taken  without   a  "venue"  stated. 

The  same  difficulty  arises  in  reading  Bank  of  British  N.  A.  v.  Madi- 
son, 99  Cal.  129,  33  Pac.  762  (above  in  this  note  cited),  when  it  refers 
to  "information  presumptively  derived  through  information  from 
others."  The  most  reasonable  presumption  is  that  the  court  in  each 
instance  referred  to  the  quasi  judicial  functions  exercised  under  the  seal 
New  Forms — 59 


930  New  Book  of  Forms. 

of  notaries  public,  which  officers  were  in  those  days  thought,  by  some, 
to  possess,  but  which  thought  has  since  been  stunted  by  sound  law  as 
expressed  in  Joost  v.  Craig,  131  Cal.  504,  82  Am.  St.  Bep.  374. 


No.   1560. — Verification — Complaint  by  Other  than  Plaintiff. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

W.  T.,  being  duly  sworn  on  behalf  of  the  plaintiff  in  the  above- 
entitled  action,  says  that  he  has  read  the  foregoing  complaint,  and 
knows  the  contents  thereof,  and  that  the  same  is  true  of  his  own 
knowledge,  except  as  to  the  matters  which  are  therein  stated  on 
information  or  belief,  and  as  to  those  matters  that  he  beheves  it 
to  be  true.  That  the  said  plaintiff  is  absent  from  the  city  and 
county  of  San  Francisco,  where  his  attorney  resides ;  and  the  facts 
are  within  the  knowledge  of  this  affiant,  who  is  the  agent  of  the 
said  plaintiff,  and  therefore  he  makes  this  affidavit. 

NOTE. — This  and  the  form  next  following,  depending  as  they  do  upon 
information  and  belief,  belong  to  the  lowest  class  of  verifications:  Cal. 
C.  C.  P.,  see.  446. 


No.  1 56 1. — Verification — Election  Contest. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Napa, — ss. 

A.  B.  \the  contesting  party],  being  duly  sworn,  says  that  the 
matters  and  things  contained  in  the  foregoing  statement  are  true. 

NOTE. — California,  C.  C.  P.,  sec.  1115;  Arizona,  C.  C,  par.  2419;  Idaho, 
C.  C.  P.,  sec.  .3799;  Montana,  C.  C.  P.,  sec.  2014;  North  Dakota,  C.  C.  P., 
pec.  5fi3;  Utah,  Rev.  Stats.,  sec.  917;  Washington,  Ballinger's  Codes, 
B€C.   1430;   Wyoming,   Rev.   Stats.,   sec,   362. 


No.    1562. — Verification — Action — Submission    Without   Con- 
troversy. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Lake, — ss. 

A.  B.  and  C.  D.,  being  each  sworn,  says,  each  for  himself  and 
not  one  for  the  other,  that  the  facts  stated  in  the  abo^-p  stinulntion 


Verification — Warrant.  931 

are  tme,  and  the  controversy  is  real  and  the  procecdin;^s  are  in 
good  faith  to  determine  the  rights  of  the  said  parties. 

NOTE.— California,  C.  C.  P.,  sees.  1138-1140;  Alnska,  Codes,  pt.  4,  c 
29,  sees.  24S-2:-)0;  Idaho,  C.  C.  P.,  sees.  394.5-3961;  North  Dakota,  C.  C. 
P.,  sees.  6131-6134;  Oregon,  Codea  and  Statutes,  sees.  41,  193,  19,5,  199, 
4U;  South  Dakota,  C.  C,  P.,  sees.  787-789;  Utah,  Eev.  Stats.,  sees.  3218- 
3220. 


No.  1563. — Verificatiop — Proceedings  to  Remove  or  Suspend 

an  Attorney. 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Marin, — ss. 

A.  B.,  being  duly  sworn,  says  that  he  has  read  [or  has  heard 
read]  the  foregoing  cliarges  against  C.  D.  and  that  said  charges 
are  true. 

NOTE. — The  foregoing  form  is  necessary  under  the  code  which  briefly 
Bays  that  the  accusation  must  be  verified  by  the  oath  of  some  person 
to  the  effect  that  the  charges  therein  contained  are  true:  Cal.  C.  C.  P., 
sec.  291.  This  form  belongs  to  the  highest  class  of  verifications;  that 
is  to  say,  the  affiant  must  make  oath  that  i  is  true:  Arizona,  C.  C,  par. 
403;  Idaho,  C.  C.  P.,  sec.  3103;  Montana,  C.  C.  P.,  sec.  420;  Nevada, 
Comp.  Laws,  sec.  2629;  Oregon,  Codes  and  Statutes,  sec.  1069;  South 
Dakota,  C.  C.  P.,  sec.  693;  Utah,  Eev.  Stats.,  sec,  124. 


WARRANT. 


No.   1564. — Warrant — Search. 

[Title  of  Court  and  Cause.] 

State  of  California, 

County  of  Contra  Costa, — ss. 

The  People  of  the  State  of  California,  to  any  SheriflF,  Constable, 
Marshal,  or  Policeman  in  the  County  of  Contra  Costa: 
Proof,  by  affidavit,  having  been  this  day  made  before  me  by 
/.  B.,  that  at  the  house  of  H.  A.  W.,  at  No.  557  California  street, 
in  the  town  of  Martinez,  in  said  county,  in  room  No.  y2,  in  a 
tin  box,  in  an  old  hair  trunk  under  a  bedstead,  there  is  a  gold 
hunting-case  watch.  No.  1/2,^^1,  Dirking  &  Co.,  makers,  Dog- 
town,  Sierra,  Co.,  Cal.,  zvhich  watch  was  stolen  from  the  person  of 
affiant  by  A.  D.,  oh  or  about  April  i,  ipoj^,  and  there  is  probable 
grounds  for  believing  that  said  affidavit  is  true.     [//  under  the 


932  New  Book  of  Forms. 

statute  the  search  may  be  made  in  either  the  day  or  ni^^ht,  so 
state  in  the  ^varrant.] 

You  are  therefore  commanded  to  make  immediate  search  in 
the  daytime,  of  the  house  of  H.  A.  W.,  No.  5S7  California  street, 
in  the  town  of  Martinez,  in  the  said  county,  for  the  following 
described  property  [description  as  above'],  and  if  you  find  the 
same,  or  any  part  thereof,  to  bring  it  forthwith  before  me,  at  my 
courtroom,  in  Brayton  township,  in  said  Contra  Costa  county. 

NOTE. — A  search-warrant  is  only  issued  upon  affidavit,  naming  or 
describing  the  person,  and  particularly  describing  the  property  and 
place  to  be  searched:  Cal.  Pen.  C,  sec.  1529. 


No.  1565. — Warrant,  Bench — Indictment  or  Information. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California,  to  any  Sheriff,  Constable, 
Marshal,  or  Policeman  in  this  State: 

An  indictment  having  been  found  [or  an  information  having 
been  tiled]  on  the  twelfth  day  of  July,  ipo6,  in  the  superior  court 
of  the  city  and  county  of  San  Francisco,  state  of  California,  charg- 
ing C.  G.  S.,  with  the  crime  of  burglary: 

Yon  are  therefore  commanded  forthwith  to  arrest  the  above- 
named  C.  G.  S.,  and  bring  him  before  that  (or  the  court  to  zvhich 
the  indictment  has  been  sent)  court  to  answer  said  indictment 
[or  information]  ;  or  if  the  court  be  not  in  session,  that  you  de- 
liver him  into  the  custody  of  the  sheriff  of  the  city  and  county  of 
San  Francisco.  [If  the  offense  is  bailable,  then  there  must  be 
added  to  the  body  of  the  warrant — "or  if  he  requires  it,  that  you 
take  him  before  any  magistrate  of  the  county,  or  in  the  county  in 
which  you  arrested  him,  that  he  may  give  bail  to  answer  the  in- 
dictment or  information."] 

Given  under  my  hand,  with  the  seal  of  said  court  affixed,  this 
twelfth  day  of  July,  1906. 

[Indorsed:  The  defendant  is  to  be  admitted  to  bail  in  the  sum 
of  three  thousand  dollars.] 

NOTE. — In  California,  if  a  defendant  has  been  discharged  on  bail, 
or  has  deposited  money  instead  of  giving  bail,  and  does  not  appear  to 
be  arraigned  when  his  personal  attendance  is  necessary,  the  court,  in 
addition  to  the  forfeiture  of  the  undertaking  of  bail,  or  of  tlie  money 
deposited,  may  order  the  clerk  to  issue  a  bench-warrant  for  hia  arrest: 
CaL  Pen.  C,  sees.  981,  982. 


Warrant — Wai*.  933 

No.  1566. — Warrant — Indorsement,  Service  of. 
[Title  of  Court  and  Cause.] 

I  hereby  certify  that  I  received  the  within  warrant  on  the  fif- 
teenth day  of  June,  ipo6,  and  served  the  said  warrant  by  arrest- 
ing the  within  named  defendant,  /.  S.,  and  bringing  him  into 
court,  this  fifteenth  day  of  June,  igo6. 

A.  B.  W., 
Sheriff  of  Napa  County. 

The  within  named  7.  S.,  having  been  brought  before  me  under 
this  warrant,  is  committed  for  examitiation  to  the  sheriff  of  the 
county  of  Napa. 

(All  courts.) 

NOTE. — When  complaint  is  made  before  a  .i^stice  or  police  judge  of 
the  commission  of  an  offense  triable  in  such  courts,  a  warrant  must  be 
issued  for  the  arrest  of  the  person  charged.  Cal.  Pen,  C,  tee.  1427. 
[See  Justice  "s  Court.] 


No.  1567. — Warrant — Arrest. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California,  to  any  Sheriff,  Constable, 
Marshal,  or   Policeman   in   the   County  of  Napa: 

A  complaint  (or  information),  upon  oath,  having  been  this 
day  laid  before  me,  by  £.  D.,  that  the  crime  of  burglary  has  been 
committed,  and  accusing  /.  .S*.  thereof,  you  are  tlierefore  com- 
manded forthwith  to  arrest  the  above-named  7.  S.,  and  bring 
him  before  me  forthwith,  at  my  office  in  said  township,  in  said 
county  of  Napa  [or,  in  case  of  my  absence  or  inability  to  act, 
before  th.  nearest  or  most  accessible  magistrate  in  this  county], 
to  be  dealt  with  according  to  law. 

Dated  at  my  office  in  said  township,  in  said  county  of  Napa, 
this  fifteenth  day  of  June,  ipo6. 

(All  courts.) 


WILL. 


No.   1568. — ^Will — Certificate  of  Its  Loss. 

[Title  of  Court  and  Estate.] 

I,  7.  V.  C,  judge  of  the  superior  court  in  and  for  said  city 
and  county,  do  hereby  certify :  That  on  May  p,  ipo6,  H.  M.  F. 
died  in  the  city  and  county  of  San  Francisco,  state  of  California, 
and  at  the  time  of  his  death  was  a  resident  of  said  city  and 
county.     That  on  the  5J  day  of  January,  1906,  tlie  said  decedent 


P34  New  Book  of  Forms. 

in  his  lifetime*  in  the  city  and  county  of  San  Francisco,  state  of 
California,  in  the  presence  of  H.  C.  and  G.  W.  J.,  as  subscribing 
witnesses,  executed  his  last  will  and  testament.  Also,  that  he 
acknowledged  the  execution  of  the  same  in  their  presence,  and 
declared  the  same  to  be  liis  last  will  and  testament,  and  the  said 
witnesses  attested  the  same  at  his  request,  in  his  presence,  and  in 
the  presence  of  each  other.  That  the  said  decedent,  at  the  time 
of  executing  said  will,  as  aforesaid,  was  of  the  age  of  eighteen 
years  and  upwards;  was  of  sound  and  disposing  mind,  and  not 
under  restraint,  undue  influence,  menace,  fraud,  duress,  or  fraud- 
ulent misrepresentations,  or  in  any  respect  incompetent  to  devise 
and  bequeath  his  estate.  That  said  will  was  in  existence  at  the 
time  of  said  testator's  death,  and  it  had  not  been  annulled  or 
revoked.  That  said  will  has  since  been  by  accident  destroyed. 
That  said  will  was  in  the  words  and  figures  following,  to  wit: 
[Here  state  the  contents.]  It  is  therefore  ordered  that  this  in- 
strument be  filed  and  recorded  as  the  last  will  and  testament  of 
said  H.  M.  P.,  deceased,  and  that  letters  testamentary  be  issued 
to  the  executors  named  in  said  will. 

In  witness  whereof,  I  have  signed  this  certificate  and  caused 
the  same  to  be  attested  by  the  clerk  of  this  court  under  the  seal 
thereof,  this  tenth  day  of  May,  A.  D.  1906. 

NOTE— In  California  when  a  lost  will  is  established,  the  provisions 
thereof  must  be  distinctly  stated  and  certified  by  the  judge  under  hia 
hand  and  the  seal  of  the  court,  and  the  certificate  must  be  filed  and 
recorded  as  other  wills  are  filed  and  recorded  and  letters  testamentary 
or  of  administration  with  the  will  annexed  must  be  issued  thereon  in 
the  same  manner  as  upon  wills  produced,  and  duly  proved:  Cal.  C.  C. 
P.,  sec.  1340;  Arizona,  C.  C.  par.  1631;  Idaho,  C.  C.  P.,  sec.  4026;  Mon- 
tana, C.  C.'P.,  sec.  2372;  New  Mexico,  Comp.  Laws,  sees.  1989,  1990; 
North  Dakota,  Probate  Code,  sec.  6298;  South  Dakota,  Probate  Code, 
eecs.  62-65;  Utah,  Rev.  Stats.,  sec.  3811;  Washington,  Ballinger's  Codes, 
Bee  6118;  Wyoming,  Eev.  Stats.,  sec.  4596. 

No.   1569.— Will — Certificate  of  Proof  of. 

ITitle  of  Court  and  Estate.] 

State  of  California, 

City  and  County  of  Sacramento, — ss. 

I,  R.  C.  C,  judge  of  the  said  superior  court,  do  hereby  certify, 
that  on  the  second  day  of  May,  igo6,  the  annexed  instrument 


*At  this  point  "quite  a  few"  practitioners  insert  the  words  in 
italics.  Such  precaution  is  seemingly  to  rebut  an  unimaginable  pre- 
sumption that  the  testator  was  not  quite  dead  when  he  executed  his 
very  last  will  at  "the  county  aforesaid."  At  the  present  writing, 
Jajiuary  1,  1906,  a  few  survivors  of  the  precautious  bar  of  1806  put 
up  the  same  bar  against  a  possible  special  demurrer. 


Wiix.  935 

was  admitted  to  probate  as  the  last  will  and  testament  of  P.  C, 
deceased,  and,  from  the  proofs  taken  and  the  examinations  had 
therein,  the  said  court  finds  as  follows : 

That  said  P.  C.  died  on  or  about  the  eleventh  day  of  April, 
J906,  in  the  county  of  Sacramento,  state  of  California;  that  at 
the  time  of  his  death  he  was  a  resident  of  the  county  of  Sacra- 
mento, aforesaid  [or  that  he  left  estate  in  said  county],  state  of 
California;  that  the  said  annexed  will  was  duly  executed  by  the 
said  decedent,  in  the  county  of  Sacramento  aforesaid,  state  of 
California,  and  signed  by  the  said  testator  in  the  presence  of  M. 
K.  and  H.  IV.,  the  subscribing  witnesses  thereto,  also  that  he 
acknowledged  the  execution  of  the  same  in  their  presence,  and 
declared  the  same  to  be  his  last  will  and  testament,  and  the  said 
witnesses  attested  the  same  at  his  request  in  his  presence  and  in 
the  presence  of  each  other ;  that  the  said  decedent,  at  the  time 
of  executing  said  will,  was  of  the  age  of  eighteen  years  and  up- 
wards, was  of  sound  and  disposing  mind,  and  not  under  duress, 
menace,  fraud,  or  undue  influence,  nor  in  any  respect  incompe- 
tent to  devise  and  bequeath  his  estate. 

In  witness  whereof,  I  h.ive  sig^ned  this  certificate,  and  caused 
the  same  to  be  attested  by  the  clerk  of  said  court,  under  the  seal 
thereof,  this  secoi\d  day  of  May,  1906. 

NOTE. — In  California,  if  the  conrt  is  satisfied,  upon  the  proof  taken 
or  from  the  facts  found  by  the  jury,  that  the  will  was  duly  executed 
and  that  the  testator  was,  at  the  time  of  its  execution,  of  sound  mind 
and  not  acting  under  duress,  menace,  fraud,  or  undue  influence;  a  cer- 
tificate of  the  proof,  and  the  facts  fonnd,  signed  by  the  judge  and  at- 
tested by  the  seal  of  the  court,  must  be  attached  to  the  will:  Cal.  C.  C. 
P.,  sec.  1317;  Arizona,  C.  C,  par.  1609;  Idaho,  C.  C.  P..  sec.  4006;  Mon- 
tana, C.  C.  P.,  sec.  2329;  Nevada,  Comp.  Laws,  sec.  2801;  New  Mexico, 
Comp.  Laws,  sees.  1989,  1990;  North  Dakota,  Probate  Code,  sec.  6301; 
South  Dakota,  Probate  Code,  see.  50;   Wyoming,  Eev.   Stats.,  sec.  4601. 


No.    1570. — Will — Testimony   of   Subscribing   Witness. 
[Title  of  Court  and  Estate.] 

/.  G.,  being  duly  sworn  in  open  court,  testifies  as  follows:  I  re- 
side in  the  city  and  county  of  San  Francisco,  state  of  California. 

I  knew  W.  G.  P.,  on  the  first  day  of  January,  1906,  the  date 
of  the  instrument  now  shown  to  me,  marked  as  filed  in  this  court 
on  the  24th  day  of  February.  igo6,  purporting  to  be  the  last 
will  and  testament  of  the  said  decedent ; 

I  am  one  of  the  subscribing  witnesses  to  said  instrtiment.  I 
also  knew  at  the  said  date  of  said  instrument,  H.  B.  and  other  of 
said   subscribing  witnesses. 

The  said   instrument  was  signed  bv  the  said  decedent  at  the 


92^  New  Book  of  Forms. 

said  city  and  county  of  San  Francisco,  on  the  ^rst  day  of  Ja7i- 
uary,  ipo6,  the  day  it  bears  date,  in  the  presence  of  myself  and 
of  said  H.  B.,  and  the  said  decedent  thereupon  pubHshed  the  said 
instrument  as,  and  declared  to  us  the  same  to  be,  his  last  will 
and  testament,  and  requested  us  in  attestation  thereof  to  sign 
the  same  as  witnesses.  The  said  H.  B.  and  I  then  and  there,  in 
the  presence  of  the  said  decedent,  and  in  the  presence  of  each 
other,  subscribed  our  names  as  witnesses  to  the  said  instrument. 

At  the  time  of  executing  the  said  mstrument  the  said  decedent 
was  over  the  age  of  eighteen  years,  and  was  of  sound  and  dis- 
posing mind,  and  not  acting  under  duress,  menace,  fraud,  undue 
influence,  or  misrepresentation. 

[To  preserve  his  evidence  to  be  referred  to  in  case  of  contest 
some  attorneys  take  a  similar  affidavit  from  all  the  witnesses.] 

NOTE. — In  California,  the  evidence  of  the  subscribing  witness  to  a 
win  must  be  reduced  to  writing:  Cal.  C.  C.  P.,  see.  1314;  Arizona,  C. 
C,  par.  1614;  Idaho,  C.  C.  P.,  sec.  4009;  Montana,  C.  C.  P.,  sec.  2342; 
Nevada,  Corap.  Laws,  sec.  2805;  North  Dakota,  Probate  Code,  see.  6296; 
South  Dakota,  Probate  Code,  sees.  48,  49. 


No.  157 1. — Will — Testimony  of  Applicant  on  Probate, 

[Title  of  Court  and  Estate.] 

T.  M.,  being  duly  sworn  in  open  court,  testifies  as  follows : 
I  am  one  of  the  persons  named  as  executors  in  the  document 
now  shown  to  me,  marked  as  filed  in  this  court  on  the  eighteenth 
day  of  April,  1906,  purporting  to  be  the  last  will  and  testament 
of  P.  C. 

I  reside  in  the  city  of  Sacramento,  and  am  of  the  age  of  twenty- 
one   years   and   upwards. 

I  knew  said  P.  C;  he  is  dead;  he  died  on  or  about  the  elev- 
enth day  of  April,  igo6,  at  his  residence,  in  the  city  of  Sacra- 
mento, state  of  California. 

At  the  time  of  his  death  he  was  a  resident  of  the  said  city  of 
Sacramento,  and  left  estate,  both  real  and  personal,  in  the  said 
city  of  Sacramento,  state  of  California,  and  in  the  city  and 
county  of  San  Francisco,  in  said  state. 

The  real  estate  is  of  the  value  of  seventy-five  thousand  dollars 
or  thereabouts,  and  the  annual  rents,  issues,  and  profits  of  said 
real  estate  amount  to  the  sum  of  twelve  thousand  dollars,  or 
thereabouts. 

The  personal  property  is  of  the  value  of  thirty  thousand  dol- 
lars, or  thereabouts. 

The  said  estate  and  effects,  for.  or  in  respect  of.  which  the  pro- 
bate of  said  will  has  been  applied  for,  do  not  exceed  the  value 


^^'aIv.  937 

of  one  hundred  and  hventy-Rvc  thousand  dollars.  All  of  the  es- 
tate of  said  deceased  is  common  property,  the  same  having  hccn 
acquired  after  his  marriage,  except  the  real  estate  in  San  Fran- 
cisco, which  zvas  ozvned  by  him  before  his  m<irriage. 

The  said  document  came  into  my  possession  as  follows,  to  wit : 
The  said  document  7vas  handed  to  me  by  J.  C,  the  zvidow  of  said 
deceased,  and  I  hclicve  the  same  to  be  his  last  will  and  testament. 

The  next  of  kin  of  said  deceased  are  said  J.  C,  his  zvidow, 
and  C.  C.  and  E.  C,  his  children,  aged  respectively,  forty, 
eighteen  and  sixteen  years,  all  residing  in  the  city  of  Saeramento. 

On  the  ninth  day  of  April,  ipo6,  when  said  will  was  executed, 
said  deceased  was  over  the  age  of  eighteen  years,  being  of  the 
age  of  forty-five  years,  or  thereabouts,  and  was  of  sound  and  dis- 
posing mind. 

NOTE.— California,  C.  C.  P.,  sec.  1316;  North  Dakota,  Probate  Code, 
sec.  6296;  South  Dakota,  Probate  Code,  sec.  49. 


No.    1572. — Will — Contest   of. 

[TilJe  of  Court  and  Estate.] 

Now  comes  H.  F.  W.  F.,  son  and  heir  of  said  H.  M.  F.,  the 
said  deceased,  and  contesting  the  will  filed  in  the  court  purport- 
ing to  be  the  last  will  of  said  deceased,  for  ground  of  contest 
states : 

[if  thb  contest  is  on  the  ground  of  incompetency.] 

The  said  H.  M.  F.  zvas  not,  when  said  alleged  will  zvas  ex- 
ecuted, of  sound  and  disposing  mind.  In  this:  The  said  H.  M. 
F.  was  under  the  influence  of  alcoholic  drink,  and  other  intoxir- 
cants  to  such  degree  that  he  did  not  know  wh-at  he  zvas  doing 
when  he  executed  said  will. 

[if  on  the  ground  of  duress  st.\te  :] 
The  said  H.  M.  F.  zvas,  zvhen  said  alleged  zvill  zvas  executed, 
acting  under  the  undue  influence  of  W.  J.  In  this:  The  said 
deceased  was  a  Protestant  and,  when  said  alleged  will  was  exe- 
cuted, a  monber  of  the  Methodist  Church.  That  he  hod  an  an- 
tipathy to  Unitarians,  and  all  those  not  beliezing  in  the  diz'inity 
of  Jesus  Christ  that  approached  monomania.  That  he  had  fre- 
quently said  that  a  person  not  believing  in  the  divinity  of  Jesus 
Christ  had  no  right  to  the  possession  or  enjoyment  of  property 
(the  foundation  of  all  property  being  in  God  and  giz'cn  by  His 
Son  Jesus  to  man  on  condition  that  mankind  would  believe  in 
Him). 


938  New  Book  of  Forms. 

That  the  said  W.  J.  zvas  with  said  deceased,  ivhen  said  alleged 
"unll  was  executed;  that  for  many  years  he,  the  said  W.  J.,  had 
been  and  tlun  was  a  constant  companion  and  warm  friend  of 
deceased,  and  deceased  luid  absolute  confidence  in  everything 
said  W.  J.  said.  That  on  the  day  said  alleged  will  was  executed 
the  said  W.  J.  said  to  deceased  that  this  contestant  was  a  Uni- 
tarian, and  to  his,  W.  J.'s,  ozvn  knowledge,  did  not  believe  in  the 
divinity  of  Jesus  Christ.  That  deceased  then  and  there,  and 
acting  under  the  information  so  obtained,  did  not  provide  for 
contestant  in  his  alleged  will;  and  contestant  alleges  that  at  the 
time  said  will  was  made  he  did  believe  in  the  divinity  of  Jesus 
Christ,  and  he  does  now  believe  in  His  divinity.  That  if  said 
W.  J.  had  not  make  the  statements  aforesaid  deceased  would 
have  provided  for  contestant  in  his  last  will. 

[if  on  thf  ground  that  it  was  not  properly  executed.] 

That  said  alleged  will  was  not  properly  attested  and  not  prop- 
erly executed  in  this:  The  said  deceased  did  not  sign  said  will 
in  the  presence  of  alleged  witnesses,  nor  did  he  acknowledge  to 
said  witnesses  tliat  the  signature  to  said  will  was  his,  or  that  it 
zvas  made  by  his  authority.  Nor  did  said  witnesses  sign  said 
will  as  witnesses  in  tlie  presence  of  the  testator  nor  in  the  pres- 
ence of  each  other. 

[if  the  will  purports  to  be  holographic,  then  :] 

That  said  alleged  will  zvas  not  entirely  written,  dated,  and 
signed  by  the  hand  of  the  testator  himself.  In  this:  Thc^  figures 
in  the  last  line  "i8g^'  are  in  print  and  the  word  "ana"  in  tJu 
third  line  from  the  top  was  not  written  by  deceased. 

Wherefore  contestant  prays  that  said  alleged  will  be  denied 
probate. 

NOTE. — In  California,  a  will  may  be  contested  on  any  of  the  follow- 
ing grounds:  1.  The  competency  of  the  decedent  to  make  a  last  will; 
2.  The  freedom  of  the  decedent  at  the  time  of  its  executk  n  from  duress, 
menace,  fraud,  or  undue  influence;  3.  The  due  execution  of  it  and  attesta- 
tion by  the  decedent  or  subscribing  witnesses;  or  4.  Any  other  questions 
Bubstantially  affecting  the  validity  of  the  will.  The  questions  at  issue 
must  on  request  of  either  party  in  wilting  (filed  three  days  prior  to  the 
day  set  for  the  hearing),  be  tried  by  a  jury.  If  no  jury  is  demanded, 
the  court  must  try  and  determine  the  issues  joined.  On  the  trial,  the 
contestant  is  plaintiff,  and  the  petitioner  is  defendant:  Cal.  C.  C.  P., 
see.  1312;  Arizona,  C.  C,  par.  1G12;  Idaho,  C.  C.  P.,  sec.  4007;  Montana, 
C  C  P  sec.  2340;  Nevada,  Comp.  Laws,  sec.  2803;  New  Mexico,  Comp. 
Laws  sec.  1985;  North  Dakota,  Probate  Code,  sees.  6296-6304;  South 
Dakota,  Probate  Code,  sees.  46,  58-61;  Utah,  Rev.  Stats.,  sec.  3791; 
"Wyoming,  Kev.  Stats.,  sec.  4602. 


Wihh.  939 

No.   1573. — Will — Contest  and  Opposition  to  Probate  of. 

[Tide  of  Court  and  Estate.] 

Now  come  M.  G.  S.  and  the  M.  T.  Co)npany  of  San  Francisco, 
a  corporation  duly  organized  and  existing  under  the  laws  of  the 
state  of  California,  as  the  executor  of  the  last  will  and  testa- 
ment of  H.  IV.  D.,  deceased,  by  C.  P.,  their  attorney,  and  file 
this  their  opposition  and  contest  to  the  probate  of  the  alleged 
and  pretended  codicil  to  the  will  of  said  deceased,  which  alleged 
and  pretended  codicil  is  dated  the  lyth  day  of  March,  1904,  and 
the  probate  whereof  has  been  petitioned  for  by  /.  C.  R.,  by  his 
petition  filed  herein  on  the  loth  day  of  September,  1904,  and 
for  ground  of  opposition  and  contest  say: 

I. 

That  the  said  S.  D.  died  on  the  jth  day  of  April,  A.  D.  1904, 
in  the  city  and  county  of  San  Francisco,  state  of  California,  and 
was  at  the  time  of  his  death  a  resident  of  said  city  and  county, 
and  left  an  estate  therein  consisting  of  real  and  personal  prop- 
erty; that  said  deceased  at  the  time  of  his  death  was  of  the  age 
of  seventy-eight  years. 

That  said  deceased  had  never  been  married  and  left  no  de- 
scendants him  surviving,  and  that  his  father  and  mother  and 
each  and  all  of  his  brothers  and  sisters,  except  his  sister  /.  D., 
had  died  prior  to  the  said  ^th  day  of  April,  1904. 

That  at  the  time  of  the  death  of  said  deceased  he  left  him  sur- 
viving as  his  only  heirs  at  law  the  following  persons,  whose  names, 
ages,  residences  and  relationship  to  said  deceased  are  and  were 
as  follows,  to  wit:   [Describe  them.] 

That  the  said  /.  D.,  M.  G.  and  H.  W-  are  the  only  heirs  at 
law  of  said  deceased. 

That  the  said  H.  IV.  died  on  the  6th  day  of  May,  A.  D.  1904, 
at  Churchville,  in  the  county  of  Monroe,  state  of  Nezv  York,  and 
al  the  time  of  his  death  was  a  resident  of  said  county  and  state, 
and  left  an  estate  in  the  state  of  California,  situated  partly  in 
the  city  and  county  of  San  Francisco,  and  partly  in  other  coun- 
ties in  said  state,  consisting  of  real  and  personal  property ;  that 
the  estate  of  said  H.  W.  situated  in  the  state  of  California  con- 
sists of  an  undivided  one-quarter  interest  in  all  and  singular  tb.-* 
property  comprising  the  estate  of  the  said  S.  D.,  deceased. 

That  said  H.  W.,  at  the  time  of  his  death,  left  a  last  will  and 
testament,  bearing  date  the  6th  day  of  May,  1904,  in  which  the 
M.  T.  Company  of  San  Francisco  was  named,  nominated  and 
appointed  as  the  executor  thereof  in  respect  to  the  estate  of  said 
H.  W.,  deceased,  situated  in  the  state  of  California. 


940  New  Book  of  Forms. 

That  the  said  M.  T.  Company  of  San  Francisco  is  and  at  all 
times  herein  mentioned  has  been  a  corporation  duly  organized 
and  existing  under  the  laws  of  the  state  of  California,  and  doing 
business  therein,  and  having  its  principal  place  of  business  in 
the  city  and  county  of  San  Francisco,  in  said  state,  and  as  such 
corporation  has  been  and  is  now  authorized,  under  and  by  vir- 
tue of  its  articles  of  incorporation,  and  under  and  by  virtue  of 
the  provisions  of  the  act  of  the  legislature  of  the  state  of  Cali- 
fornia, entitled  "An  act  authorizing  certain  corporations  to  act 
as  executor,  and  in  other  capacities,  and  to  provide  for  and  regu- 
late the  administration  of  trusts  by  such  corporations,"  approved 
April  6,  i8pi,  to  act  as  executor  of  the  last  will  and  testament 
of  deceased  persons. 

That  on  the  14th  day  of  June,  ipo4,  the  superior  court  of  the 
city  and  county  of  San  Francisco,  state  of  California,  in  a  pro- 
ceeding then  pending  therein  entitled,  "In  the  Matter  of  the  Es- 
tate of  H.  IV.,  Deceased,"  duly  made  and  rendered  its  order  ad- 
mitting to  probate  the  aforesaid  last  will  and  testament  of  the 
said  H.  W.,  deceased,  and  directing  the  issuance  of  letters  testa- 
mentary thereon  to  the  said  M.  T.  Company  of  San  Francisco; 
that  thereafter,  and  on  the  said  14th  day  of  June,  1904,  the  said 
M .  T.  Company  of  San  Francisco  duly  qualified  as  the  executor 
of  the  said  last  will  and  testament  of  the  said  H.  W.,  deceased, 
and  letters  testamentary  thereon  were  duly  issued  to  it,  and  ever 
since  has  been,  and  now  is,  the  duly  appointed,  qualified  and  act- 
ing executor  of  the  last  will  and  testament  of  said  H.  IV.,  de- 
ceased. 

II. 

That  the  said  S.  D.,  at  the  time  of  his  death,  left  an  olographic 
last  will  and  testament  bearing  date  the  21st  day  of  February, 
A.  D.  i8g8,  and  which  was  entirely  written,  dated  and  signed  by 
the  hand  of  the  said  S.  D.  himself,  and  which  said  last  will  and 
testament  is  in  the  words  and  figures  as  follows,  to  wit : 

"San   Francisco,  Feb.  21st,  iSgS. 

"In  the  Name  of  God,  Amen — I,  .S*.  D.,  of  the  city  and  county 
of  San  Francisco,  state  of  California,  United  States  of  America, 
born  in  the  village  of  Gdllway,  county  of  Saratoga,  state  of  Neio 
York,  on  the  pth  day  of  March,  1826,  being  of  sound  mind  and 
m.emory,  do  make,  publish  and  declare  this  to  be  mv  last  will 
and  testament. 

"ist.  I  make,  constitute  and  appoint  /.  C.  of  the  city  and  county 
of  San  Francisco,  whose  ofifice  is  at  408  Ccuifornia  street.  Room 
2,  my  executor,  of  this  my  last  will  and  testament,  to  act  without 
giving  any  bond,  undertaking  -5r  security  of  any  kind.  In  case 
cf  the  inability  of  the  said  ^ .  C.  from  any  cause  whatever  to  act, 
I  make,  constitute  and  aopouit  the  IJ .  T.  Company  of  San  Fran- 


Will.  941 

CISCO,  -ivhose  f^Iace  of  business  is  on  the  northeast  corner  of  Mont- 
gouicry  and  Market  streets,  to  act  as  executor  in  his  stead. 
"I  hereby  revoke  all  former  wills  made  bv  me. 

"S.  D., 
"408  California  Street." 

That  the  aforesaid  document  constitutes  and  is  the  entire  and 
only  last  will  and  testament  of  the  said  S.  D.,  deceased. 

That  on  th.e  13th  day  of  May,  IQ04,  the  superior  court  of  the 
city  and  county  of  San  Francisco,  state  of  California,  in  a  pro- 
ceeding then  pending  therein,  entitled  "In  the  Matter  of  the  Es- 
tate of  S.  D.,  Deceased,"  duly  made  and  rendered  its  order  ad- 
mitting to  probate  the  aforesaid  document  dated  the  21st  day 
of  February,  A.  D.  1808,  as  and  for  the  last  will  and  testament 
of  the  said  S.  D.,  deceased,  and  directing  the  issuance  of  letters 
testamentary  thereon  to  the  said  /.  C;  that  thereafter,  and  on 
the  said  13'th  day  of  May,  1904,  the  said  /.  C.  duly  qualified  as 
the  executor  of  the  said  last  will  and  testament  of  the  said  S.  D., 
deceased,  and  letters  testamentary  thereon  were  duly  issued  to 
him,  and  ever  since  the  said  7.  C.  has  been,  and  now  is,  the  duly 
appointed,  qualified  and  acting  executor  of  tlie  aforesaid  last  will 
and  testament  of  said  S.  D.,  deceased. 

III. 

That  a  document  in  writing  bearing  date  the  17th  day  of 
March,  1904,  and  purporting  to  be  an  olographic  codicil  to  the 
aforesaid  last  will  and  testament  of  S.  D.,  deceased,  and  to  be 
entirely  written,  dated  and  signed  by  the  hand  of  the  said  S.  D., 
has  been  heretofore  presented  to  the  above-entitled  court  for 
probate,  as  and  for  a  part  of  the  last  will  and  testament  of  said 
S.  D.,  deceased;  that  J.  C,  who  is  named  in  the  aforesaid  last 
will  and  testament  of  S.  D.,  deceased,  as  the  executor  thereof,  by 
his  petition  filed  herein  on  the  loth  day  of  September,  1904,  has 
petitioned  said  court  that  said  document  be  admitted  to  probate 
as  a  codicil  to  and  as  a  part  of  the  last  will  and  testament  of  the 
said  S.  D.,  deceased. 

IV. 

That  said  document  bearing  date  the  r/th  day  of  March,  1904, 
and  purporting  to  be  a  codicil  to  the  aforesaid  last  wall  and  testa- 
ment of  said  S.  D.,  deceased,  was  not,  nor  was  any  part  thereof, 
written,  dated  and  signed,  or  written,  or  dated,  or  signed,  by 
the  hand  of  the  said  S.  D. 

Wherefore,  these  contestants  pray  the  judgment  and  decree  of 
this  court  that  the  said  alleged  and  pretended  codicil  bearing  date 
the  lyth  day  of  March,  IQ04,  is  not  a  codicil  to,  nor  any  part  of, 
the  last  will  and  testament  of  the  said  S.  D.,  deceased,  and  that 


942  New  Book  of  Forms. 

the  same  fs  null  and  void,  and  that  probate  thereof  be  denied, 
and  that  contestants  be  given  judgment  for  their  costs. 

NOTE.— California,  C.  C.  P.,  sec.  1312;  Arizona,  C.  C,  par.  1612; 
Idaho,  C.  C.  P.,  sec.  4007;  Montana,  C.  C.  P.,  sec.  2340;  Nevada,  Comp. 
Laws,  sec.  2303;  New  Mexico,  Comp.  Laws,  sec.  1985;  North  Dakota, 
Probate  Code,  sees.  6296-6304;  South  Dakota,  Probate  Code,  sec.  46; 
Utah,  Eev.  Stats.,  sec.  3791;  Wyoming,  Eev.  Stats.,  sec.  4002. 


No.   1574, — Will — Contest  of  Petition  for  Letters — Incompe- 
tency of  Petitioner. 

[Title  of  Court  and  Estate.] 

Now  comes  C.  D.  and  contesting  the  petition  of  A.  B.  for  let- 
ters of  administration  upon  the  estate  of  E.  P.,  deceased,  for 
ground  of  contest  states  that  the  said  A.  B.  is  not  a  bona  fide  resi- 
dent of  the  state  of  California  [or  that  he  has  been  convicted  of 
an  infamous  crime;  or  is  under  the  age  of  majority;  or  has  been 
adjudged  by  a  court  to  be  incompetent  to  execute  the  trust  by 
reason  of  drunkenness  or  improvidence,  or  zvants  understand- 
ing, or  lacks  integrity],  and  is  a  resident  of  the  city  of  Rochester, 
Monroe  county,  state  of  New  York. 

And  contestant  states  that  he  has  filed  in  this  court  his  appli- 
cation to  be  appointed  administrator  of  said  estate,  and  he  prays 
that  this  contest  and  said  application  may  be  heard  together. 

NOTE. — For  the  reasons  stated  in  brackets,  the  court  may  appoint  the 
contestant:  Cal.  C.  C.  P.,  see.  1374;  Arizona,  C.  C,  par.  1656;  Idaho,  C. 
C.  P.,  sec.  4050;  Montana,  C.  C.  P.,  sec.  2443;  Nevada,  Comp.  Laws, 
sec.  2829;  New  Mexico,  Comp.  Laws,  sec.  1985;  North  Dakota,  Probate 
Code,  sees.  6296-6304;  South  Dakota,  Probate  Code,  sec  46;  Utah,  Eev. 
Stats^  see.  3819;  Wyoming,  Eev,  Stats^  sec.  4649. 


No.  1575. — Will — Minors — Consent  to  Probate. 
[Title  of  Court  and  Estate.] 

I,  C.  H.,  attorney  of  the  minors,  C.  C.  and  E.  C,  and  J.  C, 
widow,  who  are  interested  in  the  said  estate  to  represent  them  on 
the  hearing  of  the  testimony  in  proof  of  a  document  filed  in  said 
court  on  the  eighteenth  day  of  April,  ipo6,  purporting  to  be  the 
last  will  and  testament  of  said  deceased,  do  hereby  appear  on  their 
behalf,  and  consent  that  the  said  document,  purporting  to  be  the 
last  will  and  testament  of  said  deceased,  as  aforesaid,  be  allowed 
and  recorded  herein,  and  be  admitted  to  probate  in  said  court. 


Will— \\'rtt.  943 

as  the  last  wftl  and  testament  of  the  said  deceased,  and  that  let- 
ters testamentary  be  issued  to  T.  M.  and  G.  B.,  according  to  the 
prayer  of  their  petition,  filed  on  the  said  eighteenth  day  of  April, 
igo6. 

NOTE. — If  an  attorney  represents  all  interested  parties,  he  donbtless 
may  consent  to  the  probate  of  a  will  so  that  it  is  not  subject  to  contest: 
Cal.  a  C.  P.,  sec.  283. 


WRIT. 


No.  1576. — Writ,  Review  of — Certiorari. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California,  to  /.  C.  P.,  Justice  of  the 
Peace  in  and  for  said  City  and  County: 

Whereas,  it  manifestly  appears  to  us  by  the  affidavit  of  /.  P., 
the  party  beneficially  interested,  that  in  a  certain  action  pending 
before  you,  against  /.  H.  and  J.  P.,  at  the  suit  of  said  J.  P.  against 
H.  and  P.,  you,  exercising  judicial  functions,  have  exceeded  your 
jurisdiction,  and  that  there  is  no  appeal  nor  any  other  plain, 
speedy,  and  adequate  remedy ;  and  being  therefore  willing  to  be 
certified  of  the  said  action  or  proceedings : 

We  therefore  command  you,  that  you  certify  fully  and  send 
to  our  superior  court  of  the  city  and  county  of  San  Francisco, 
Department  No.  i,  at  the  courtroom  thereof,  in  the  city  and  county 
of  San  Francisco,  on  the  tenth  day  of  November,  igo6,  a  tran- 
script of  the  record  and  proceeding  in  the  action  aforesaid,  to  wit : 
[The  complaint,  summons,  demurrer  of  defendant  to  the  com- 
plaint, the  order  overruling  the  said  demurrer,  and  the  judgment 
of  the  court.]  With  all  things  touching  the  same  as  fully  and 
entirely  as  it  remains  before  you,  by  whatsoever  names  the  parties 
may  be  called  therein,  that  the  same  may  be  reviewed  by  our  said 
superior  court,  and  in  the  meantime  we  command  and  require 
the  said  /.  C.  P.,  justice  of  the  peace,  and  his  court,  to  desist  from 
further  proceedings  in  the  matter  so  to  be  reviewed. 

NOTE. — California,  C.  C.  P.,  sees.  1070.  1071;  Alaska,  Codes,  pt.  4, 
e.  55,  sec.  542;  Arizona,  C.  C,  par.  482;  Idaho,  C.  C.  P.,  sec.  3757;  Mon- 
tana, C.  C.  P.,  sec.  1940;  Nevada,  Corap.  Laws,  sec.  3530;  New  Mexico, 
Comp.  Laws,  sec.  2804;  North  Dakota,  C.  C,  sec.  6099;  Oregon,  Codes 
and  Statutes,  sec.  596;  South  Dakota,  C.  C.  P.,  see.  757;  Utah,  Rev. 
Stats.,  sec.  3629;  Washington,  BalUnger's  Codes,  sec.  5742. 


944  New  Book  of  Forms. 


No.   1577. — Writ — Assistance  of. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California  to  the  Sheriff  of  the  County 

of  San  Mateo,  Greeting: 

Whereas,  by  a  judgment  and  decree  of  this  court,  it  was,  among 
other  things,  adjudged  and  decreed  that  the  purchasers  at  the  ser- 
iff's  sale  of  the  premises  in  said  decree  described  as  follows,  to 
wit  [description],  should,  on  the  production  of  the  sheriff's  deed, 
be  forthwith  put  into  possession  of  the  above-described  premises; 

And  whereas,  said  sheriff  has  issued  to  the  purchaser  at  such 
sale,  viz.,  /.  W.,  his,  said  slieriif's,  deed  therefor,  which  said  land 
and  premises  are  now  in  possession  and  occupation  of  said  R.  R.; 

And  whereas,  by  an  order  of  this  court,  made  in  the  said  action, 
on  the  tenth  day  of  July,  igo6,  it  was  ordered  that  a  writ  of  as- 
sistance should  issue  to  you,  the  said  sheriff,  to  put  the  said  /.  W. 
in  possession  of  the  said  piece  or  parcel  of  land,  and  him  in  pos- 
session thereof  from  time  to  time  to  maintain  and  defend : 

Therefore,  we  command  you,  that  immediately  after  receiving 
this  writ,  you  go  to,  and  enter  upon  the  said  piece  or  parcel  of 
land,  and  that  you  eject  and  remove  therefrom  all  and  every  per- 
son or  persons  holding  or  detaining  the  same,  or  any  part  thereof, 
against  the  said  /.  W.,  and  that  you  deliver  to  the  said  /.  W.,  or 
his  assigns  the  possession  of  the  said  piece  or  parcel  of  land  with- 
out delay;  and  him,  the  said  /.  W.,  in  such  possession  thereof, 
from  time  to  time,  maintain,  keep,  and  defend,  or  cause  to  be  kept, 
maintained,  and  defended,  according  to  the  tenor  and  true  intent 
of  the  said  decree  and  order  of  the  said  court. 

NOTE. — California,  C.  C.  P.,  sees.  682,  1210-1254.  This  writ,  in  sub- 
stance, is  applicable  in  all  states.  In  section  380,  Code  of  Civil  Pro- 
cedure, the  same  writ  is  referred  to  as  a  writ  for  the  possession  of 
premises.  It  is  frequently  referred  to  in  reported  cases  as  a  "writ  of 
possession."  Necessarily  a  court  clothed  by  a  constitution  or  statute 
with  authority  to  hear  and  determine  a  right  or  redress  a  wrong  has  a 
right  to  issue  and  enforce  all  necessary  writs  to  enforce  its  jurisdiction 
with  or  without  legislative  authority. 


No.    1578. — Writ — Possession. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  Calif ornia  to  the  Sheriff  of  the  County 
of  Marin,  Greeting: 

Whereas,  on  the  twenty-fifth  day  of  April,  1906,  J.  D.,  as  plain- 
tiff, recovered  a  judgment  and  decree  in  the  said  superior  court 


Writ.  945 

of  the  county  of  Marin,  state  of  California,  against  R.  R.  as  de- 
fendant, for  tlie  possession  of  certain  premises  in  said  judgment 
and  decree,  and  hereinafter  more  particularly  described,  and  also 
for  the  sum  of  $340  damages  for  the  detention  of  said  premises, 
besides  the  sum  of  $76.23  costs  of  suit,  as  appears  to  us  of  record ; 

And  whereas,  the  judgment-roll  in  the  action  in  which  said 
judginent  was  entered  is  filed  in  the  clerk's  office  of  said  court, 
in  the  county  of  Marin,  and  the  said  judgment  was  docketed  in 
said  clerk's  office,  in  the  said  county,  on  the  day  and  year  first 
above  written : 

Now,  therefore,  you,  the  said  sheriff,  are  herdDy  commanded 
and  required  to  deliver  to  the  said  plaintiff  /.  D.  the  possession 
of  the  lands  and  premises  in  said  judgment  and  decree  described, 
as  follows,  to  wit:  [Description.] 

And  whereas,  the  sums  of  $340  damages  and  $76.23  costs  are 
now  (at  the  date  of  this  writ)  actually  due  on  said  judgment: 

You,  the  said  sheriff,  are  hereby  further  required  to  make  the 
said  sums  due  on  the  said  judgment,  for  damages  and  costs,  and 
all  accruing  costs,  to  satisfy  the  said  judgment,  out  of  the  per- 
sonal property  of  said  judgment  debtor ;  or,  if  sufficient  personal 
property  of  said  debtor  cannot  be  found,  then  out  of  the  real 
property  in  your  county,  belonging  to  him  on  the  day  whereon 
said  judgment  was  docketed,  in  the  said  county,  or  at  any  time 
thereafter ;  and  make  return  of  this  writ  within  thirty  days  after 
your  receipt  thereof,  with  what  you  have  done  indorsed  hereon. 

(All  courts.) 

NOTK — California,  a  C.  P.,  sec  380, 


No.   1579. — ^Writ — Restitution. 

In  the  Superior  Court  of  the  City  and  County  of  San  Pranr- 
cisco,  State  of  California, 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California,  to  the  Sheriff  of  the  City 
and  County  of  San  Francisco,  Greeting: 

Whereas,  on  the  eleventh  day  of  January,  ipo6,  T.  J.,  plaintiff, 
recovered  a  judgment  in  the  said  superior  court  of  the  city  and 
county  of  San  Francisco,  against  P.  McC.  for  the  restitution  of 
certain  premises  in  said  judgment  and  hereinafter  described,  aftd 
also  for  the  sum  of  tzvo  hundred  and  forty  dollars,  treble  rents  for 
the  detention  of  said  premises,  one  hundred  dollars  damages,  and 
sixteen  dollars  costs  of  suit,  as  appears  to  us  of  record,  and  which 
judgment  was  docketed  in  the  clerk's  office  of  said  court  on  the 
New  Forms — 60 


946  New  Book  of  Forms. 

tzcdffh  day  of  January,  ipo6  [or  that  "a  tratiscript  of  tUe  docket 
of  said  jiuigment  was  filed  in  the  office  of  the  county  recorder  of 
the  county  of  Alameda,  on  the  fourteenth  day  of  January,  ipo6"]  : 

Now,  therefore,  you  the  said  sheriff,  are  hereby  commanded 
to  deliver  to  the  said  T.  /.  the  possession  of  the  lands  and  premises 
in  said  judgrnent,  described  as  follows:  [Description.] 

And  whereas,  the  sum  of  two  hundred  and  forty  dollars  treble 
rents,  one  hundred  dollars  damages,  and  sixteen  dollars  costs,  are 
now,  at  the  date  of  this  writ,  due  on  said  judgment,  you  the  said 
sheriff,  are  hereby  further  required  to  satisfy  said  judgment,  and 
all  accruing  costs,  out  of  the  personal  property  of  said  judgment 
debtor,  r.  McC;  or,  if  sufficient  personal  property  of  said  debtor 
cannot  be  found,  then  out  of  the  real  property  in  your  county  be- 
longing to  him  on  the  day  whereon  said  judgment  was  docketed 
in  the  aforesaid  city  and  county,  or  at  any  time  thereafter ;  and 
make  return  of  this  writ  within  tzventy-five  days  after  your  receipt 
hereof,  with  what  you  have  done  indorsed  hereon, 

(All  courts.) 

NOTE. — ^In  California,  if  the  jndgment  be  for  tlie  delivery  of  the 
possession  of  real  or  personal  property,  it  must  require  the  sheriff  to 
deliver  the  possession  of  the  same,  describing  it,  to  the  party  entitled 
thereto,  and  may,  at  the  same  time,  require  the  sheriff  to  satisfy  any 
costs,  damages,  rents,  or  profits,  recovered  by  the  same  judgment,  out 
of  the  personal  property  of  the  person  against  whom  it  was  rendered, 
and  the  value  of  the  property  for  which  the  judgment  was  rendered  to 
be  specified  therein  if  a  delivery  thereof  cannot  be  had;  and  if  suf- 
ficient personal  property  cannot  be  found,  then  out  of  the  real  prop- 
erty, as  provided  in  the  fijst  subdivision  of  this  section:  CaL  C  G.  P,, 
see.  682,  subd.  5. 


No.    1580. — Writ — Habeas   Corpus. 

[Title  of  Court  and  Cause.] 

In  the  Superior  Court  of  the  County  of  San  Joaquin^  State  of 
California. 

The  People  of  the  State  of  California,  to  /.  T.  R.,  Sheriff  of  the 
County  of  San  Joaquin,  Greeting : 

We  command  you,  that  you  have  the  body  of  P.  S.,  by  you  im- 
prisoned and  detained,  as  it  is  averred,  together  with  the  time  and 
cause  of  such  imprisonment  and  detention,  by  whatsoever  name 
said  P.  S.,  shall  be  called  or  charged,  before  C.  V.  R.  P.,  judge  of 
the  superior  court  of  the  state  of  California,  at  the  courtroom  of 
said  superior  court,  county  of  San  Joaquin,  on  the  twenty-first 
day  of  April,  igo6,  at  2  o'clock  in  the  afternoon  of  that  day,  to  do 
and  receive  what  shall  then  and  there  be  considered  concerning 
the  said  P.  S.;  and  have  you  then  and  there  this  writ. 

NOTE.— California,  Pen.  C,  see.  1477. 


Writ.  947 

[Or  we  command  yon  in  person,  and  not  by  deputy  or  agent,  to 
hare  the  body  of  P.  S.,  by  you  detained  as  the  petition  filed  in  this 
proceeding  avers;  and  at  the  same  time  you  are  commanded  to 
state  in  tiriting,  in  your  return  to  this  writ,  the  cause  of  your  im- 
prisonment or  detention  of  said  P.  S.  [if  the  person  detained  is 
known  by  some  other  name,  then  add]  by  zvhatcver  name  said  so- 
called  P.  S.  is  known;  the  said  P.  S.  to  be  brought  before  the  Hon- 
orable F.  II.  K.,  juclgfc  of  the  superior  court  of  the  city  and  county 
of  San  Francisco,  state  of  California,  on  the  third  day  of  July, 
igo6,  at  2  o'clock  in  the  afternoon  of  that  day,  to  the  end  that  jus- 
tice may  be  done.]  And  you  are  commanded  to  have  then  and 
and  there  this  writ,  with  your  return  indorsed  thereon  or  annexed 
thereto;  [or,  if  the  prisoner  is  to  be  brought  before  the  highest 
court  of  the  state,  add:]  before  our  justices  of  our  supreme  court 
at,  etc.;  or  immediately  after  the  receipt  of  this  writ  [or  instantly 
upon  the  receipt  of  this  writ],  you  are  commanded  to  bring,  etc., 
before  our  said  justices  who  are  at  this  moment  sitting  as  a  court 
awaiting  the  return  of  this  writ  [or  before  one  or  more  of  said 
judges  or  justices]. 

RETURN    TO   BE    INDORSED  ON   OR   ANNEXED  TO   THE    W^RIT. 

In  obedience  to  the  within  [or  annexed  writ],  I  certify  and 
return  to  [the  court  or  officer  ordering  the  zvrit]*  that  before  the 
coming  of  said  writ  to  me,  namely,  on  etc.,  at,  etc.  [state  the  com- 
mitment, if  any,  annexing  a  copy  thereof  to  the  return,  and  detail 
the  facts]  ;  to  all  of  which  I  certify  and  have  here  with  me  the 
body  of  said  P.  S.,  as  by  the  said  writ  commanded. 

[Or  as  in  the  above  return  to  asterisk]  that  neither  at  the 
time  of  the  allowance  of  said  writ,  nor  at  any  time  since,  was  the 
said  P.  S.  in  my  custody,  nor  was  he  restrained  by  me  of  his  lib- 
erty;  wherefore  I  cannot  have  his  body  before  [the  court  or  officer 
ordering  the  writ],  as  by  said  writ  I  am  commanded. 

NOTE.— Cal.  Pen.  C,  sees.  1480,  1483.  This  form  of  writ  is  not  local. 
Tt  may  be  said  that  the  law  applicable  to  it  is  coextensive  with  the 
Fnited  States.  As  a  general  rule,  its  function  is  to  inquire  into  the  ac- 
tion of  a  court,  board,  or  officer  alleged  to  be  proceeding  in  excess  of 
its  jurisdiction.  A  person  regularly  in  custody  cannot  be  discharged  on 
habeas  corpus.  Before  the  writ  will  issue,  it  must  be  shown  1 1  the  sat- 
isfaction of  a  court  or  judge  that  the  imprisonment,  detention,  or  com- 
mitment are  without  authority  of  law.  If  the  complaint  or  indictment 
does  not  charge  a  crime,  or  if  there  has  been  a  conviction  for  an  act 
not  a  crime,  then  the  writ  will  issue.  It  is  also  used  to  liberate  wit- 
nesses unrea^sonnbly  detained  to  insure  their  appearance  to  testify  in 
criminal  ease-s.  Questions  of  irregularity  at  trial,  or  relating  to  con- 
victions will  not  be  reviewed  on  habeas  corpus.  "When  the  ground  for 
the  writ  is  alleged  to  be  that  a  prisoner  has  been  committed  without 
probable  cause,  the  evidence  taken  at  the  examination  must  be  set  out 
In  such  form  that  perjury  may  be  assigned  upon  false  allegations.  It 
is  insufficient   to   aver   generally  that   no   evidence   waa   taken  showing. 


948  New  Book  of  Forms. 

or  tending  to  show,  the  prisoner's  gnilt.  If  the  application  is  to  be 
admitted  to  bail  pending  appeal,  the  facts  must  be  stated  in  such  form 
as  will  enable  the  court  to  determine  whether  an  injustice  has  been 
done  the  prisoner.  The  illegal  imprisonment  must  be  shown  as  contra- 
distinguished from  a  statement  of  a  conclusion  of  fact,  or  law.  The 
petition  for  the  writ  should  state  all  the  facts  in  a  full  though  concise 
manner,  leaving  nothing  that  courts  will  not  take  judicial  notice  of  to 
interenee  or  conjecture.     See  Petition  for  Writ  of  Habeas  Corpus. 


No,   1581. — Writ  of  Review — ^Application  for. 

In  the  Supreme  Court  of  the  State  of  California, 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

A.  B.  C,  having  first  been  duly  sworn,  deposes  and  says : 

I.  That  heretofore,  to  wit,  on  September  18,  ipo§,  a  complaint 
was  made  and  filed  in  and  with  the  clerk  of  the  police  court  of 
the  city  and  county  of  San  Francisco,  state  of  California,  and  in 
Department  No.  4  thereof,  in  which  D.  B.  F.  then  presided  and 
still  presides  as  the  judge  thereof,  of  which  complaint  the  follow- 
ing is  a  copy: 

[Title  of  Court  and  Cause.] 

[Then  set  out  in  full  the  complaint,  or  other  proceeding,  part 
or  all  of  the  subject,  etc.,  to  be  reviewed,  including  verification,  if 
any,  indorsements  and  record  marks.] 

That  under  and  on  said  complaint  process  was  duly  issued,  and 
deponent  (who  is  the  A.  B.  C.  in  said  complaint  named)  arrested 
and  brought  before  said  court  and  department,  and  the  matter 
of  said  complaint  against  him  set  for  trial  therein.  On  the  20th 
day  of  November,  igoj,  the  said  matter  of  said  complaint  came  on 
for  trial  in  said  court  and  department  and  before  said  D.  B.  F., 
as  the  judge  thereof,  and  deponent  having  challenged  the  suffi- 
ciency of  said  complaint  as  not  showing  that  any  public  offense 
had  been  by  him  committed,  and  that  challenge  having  been  by 
said  court  and  judge  thereof  then  and  there  denied  (and  it  was  so 
denied),  pleaded  .lot  guilty  to  the  charge  in  said  complaint  made. 
Thereupon  the  trial  of  deponent  upon  said  charge  in  said  com- 
plaint made  was  had  in  said  court  and  before  said  judge  thereof 
(a  jury  trial  having  been  waived),  and,  after  hearing  the  evidence 
introduced  (and  evidence  was  so  introduced)  against  and  by  de- 
ponent, the  said  court  and  judge  thereof  found  and  adjudged  de- 
ponent guilty  of  said  charge,  and  after  denying  deponent's  motion 
in  arrest  of  judgment  then  and  there  by  him  made,  namely,  on 
Noz>ember  2^,  1905,  sentenced  him  to  pay  a  fine  of  one  hundred 
dollars,  or,  in  lieu  of  said  payment,  to  be  imprisoned  in  the  county 


Writ.  949 

Jail  of  said  city  and  county  for  a  period  of  fifty  days,  unless  said 
fine  was  sooner  paid.  Said  finding  and  sentence  was  thereupon 
duly  entered  in  said  police  court  as  the  judgment  thereof  in  the 
said  matter  of  said  complaint  against  this  deponent. 

2.  Thereafter,  to  wit,  on  November  24,  190^,  deponent  served 
upon  the  district  attorney  of  said  city  and  county,  and  filed  with 
the  clerk  of  said  police  court  and  department  thereof,  his,  de- 
ponent's, notice  of  appeal  to  the  superior  court  of  said  city  and 
county  of  San  Francisco  from  and  to  the  efifect  that  he  did  appeal 
to  said  superior  court  from  said  judgment  of  said  police  court  and 
from  the  whole  thereof.  That  thereafter,  to  wit,  on  November 
25,  1905,  the  deponent  prepared  and  the  said  judge  of  said  police 
court  settled  and  allowed  and  filed  with  the  clerk  of  said  police 
court,  the  statement  of  said  case  against  deponent  in  said  police 
court  required,  and  as  required  by  law,  and  of  which  said  state- 
ment the  following  is  a  copy : 

[Title  of  Court  and  Cause.] 

[Then  set  out  the  statement  of  the  case  above  referred  to,  and 
ordinance,  statute,  order,  etc.,  to  which  objection  is  made.] 

Immediately  upon  conviction  defendant  made  a  motion  for  a 
new  trial  upon  the  grounds,  first,  that  the  verdict  of  the  court  (a 
jury  trial  having  been  waived)  is  contrary  to  the  evidence;  and 
also  upon  the  ground,  second,  that  the  verdict  is  contrary  to  law. 
Motion  denied.     Exception  taken. 

On  November  24th,  defendant  was,  upon  said  conviction  sen- 
tenced to  pay  a  fine  of  $100,  and  to  be  imprisoned  in  the  county 
jail  for  a  period  of  fifty  days,  unless  said  fine  was  sooner  paid. 
The  evidence  established  the  facts  to  be  as  follows : 

[Set  out  the  facts  in  full,  and  omit  all  evidence  upon  which  the 
facts  depend.] 

(Signed)     A.  L., 
Attorney  for  Defendant. 

[Then  insert  the  judge's  certificate  settling  the  statement.] 

That  all  of  said  matters  so  contained  in  said  statement  of  the 

case  are  true,  and  are  herein  repeated  and  affirmed,  and  prayed 

to  be  taken  and  considered  as  herein  newly  and  independently 

pleaded  as  part  of  this  deponent's  application  for  a  writ  of  review. 

3.  That  thereupon  the  said  appeal  of  deponent  to  said  superior 
court  from  said  judgment  of  said  police  court  was  duly  perfected 
as  by  law  required,  and  the  record  thereof  on  such  appeal  by  law 
provided  sent  to  and  filed  in  said  superior  court. 

4.  Thereafter  the  said  appeal  and  the  matter  thereof  was  pre- 
sented and  heard  in  and  by  said  superior  court,  and  before  three 
fudges  thereof  sitting  in  bank,  this  deponent  (there  the  appellant) 


950  New  Book  of  Forms. 

challenging  variously  and  fully  the  validity  of  said  ordinance  upon 
which  said  complaint  in  said  police  court  was  based,  and  asking 
that  said  judgment  of  said  police  court  be  reversed  and  said  com- 
plaint against  deponent  dismissed.  Nevertheless  the  said  superior 
court,  so  sitting  in  bank  as  aforesaid,  thereafter,  to  wit,  on  Decem- 
ber 21.  100=,,  rendered  its  judgment  on  said  appeal,  affirming,  and 
whereby  it  affirmed,  said  judgment  of  said  police  court. 

5-  That  thereupon  a  copy  of  the  order  of  said  superior  court 
affirming  said  judgment  of  said  police  court  was  remitted  to  said 
police  court  and  filed  with  the  clerk  thereof,  and  thereafter,  to 
wit,  on  December  2^,  igo^,  said  police  court  and  said  D.  E.  F., 
as  the  judge  thereof,  made  and  entered  an  order  therein  in  the 
matter  of  the  said  complaint  against  this  deponent  that  said  judg- 
ment of  said  police  court  of  November  24,  ipo^,  having  been  by 
said  superior  court  affirmed  on  appeal  to  it,  be  carried  into  effect, 
and  that  deponent  pay  said  fine  of  Ofie  hundred  dollars,  or  be  im- 
prisoned in  said  county  jail  for  a  period  of  fifty  days,  unless  said 
fine  had  been  sooner  paid. 

Said  judgment  now  exists  as  above  stated,  not  reversed,  vacated 
nor  set  aside,  and  said  fine  has  not  been  paid  nor  said  term  of 
imprisonment  yet  enforced. 

Said  superior  court,  in  rendering  its  decision  on  said  appeal 
made  to  it  as  aforesaid,  suggested  and  recommended  that  the 
questions  of  law  therein  and  here  involved  and  raised  be  presented 
to  and  passed  upon  by  this  court  imder  a  writ  of  review,  as  is 
hereinafter  prayed. 

And  deponent  now  says  and  represents  to  this  court  that  said 
police  court  and  said  D.  E.  F.,  as  the  judge  thereof,  has,  in  ren- 
dering and  entering  said  judgment  against  deponent,  acted  with- 
out and  in  excess  of  the  jurisdiction  of  said  court  and  judge,  in 
that  the  matters  stated  in  and  charged  by  said  complaint  to  have 
been  committed  by  this  deponent  were  not,  and  do  not,  constitute 
a  public  or  criminal  or  other  offense — the  ordinance  of  the  board 
of  supervisors  of  said  San  Francisco,  purporting  to  make  the  [state 
the  act  constituting  the  crime]  in  said  San  Francisco  such  an 
offense,  and  under  the  provisions  of  which  said  complaint  was 
made,  and  said  judgment  given  being  invalid  and  beyond  the 
power  of  said  board  of  supervisors  to  enact,  especially  in  this : 

a.  The  power  and  jurisdiction  in  said  ordinance  attempted  to 
be  exercised  has  not  been,  by  constitution  or  statute,  granted  to 
said  board  of  supervisors,  nor  is  it  inherent  in  said  board  as  a 
municipal  corporation  or  otherwise. 

b.  Said  ordinance  is  in  conflict  with  the  general  laws  of  this 
state. 

c.  Said  ordinance  is  unreasonable,  in  that  it  would  operate  an 
unnecessary  restriction  upon  the  [here  state  fully  and  separatdy. 


Writ.  951 

how  the  law  would  operate  to  injure  the  person  or  property  of  the 
petitioner,  and  conclude  as  follows:] 

Deponent  further  says  that  he  has  exhausted  his  right  of  ai>- 
peal  from  said  judgment  of  said  police  court,  and  judge  thereof, 
without  redress,  as  hereinbefore  stated;  and  that  said  judgment 
and  sentence  thereunder  will  be  carried  into  effect  and  deponent 
fined  or  imprisoned  as  said  judgment  requires,  unless  said  judg- 
ment and  proceedings  leading  thereto  be  reviewed  by  this  court. 

Deponent  applies  to  this  court  in  the  first  instance  for  such  re- 
view, because  the  superior  court  of  said  city  and  county  of  San 
Francisco  has,  while  sitting  in  bank  on  tlie  said  appeal  as  afore- 
said, passed  upon  all  the  questions  of  law  involved  in  the  review 
here  sought,  adversely  to  deponent,  and  an  application  in  the  first 
instance  to  said  superior  court  for  a  writ  of  review  of  said  judg- 
ment and  proceedings  of  said  police  court  and  judge  thereof 
would  be  an  idle  and  useless  proceeding. 

Deponent  therefore  prays  that  said  D.  E.  F.,  as  the  judge  of 
said  police  court  and  department  thereof,  be  by  the  court  required 
to  certify  to  this  court  at  a  specified  time  and  place  a  full  tran- 
script of  the  record  and  proceedings  leading  up  to  and  including 
said  judgment,  and  sentence  thereunder  for  review  herein,  and 
that  thereupon  the  court  review  and  annul  the  same.  Also  that 
the  said  sentence  and  proceedings  thereunder  be  in  the  mean- 
time stayed. 

Verified. 

NOTE.— California,  C.  C.  P.,  sees.  1067-1077. 


No.  1582. — Writ — Ordered  to  Issue  by  Supreme  or  Superior 
Court  to  Inferior  Court  and  Certify  and  Return  a  Tran- 
script of  Its   Record   for   Review. 

[Title  of  Court  and  Cause.] 

On  reading  and  filing  herein  the  affidavit  and  application  of 
A.  B.  C.  for  a  writ  of  review  to  be  issued  by  this  court  to  D.  B. 
F.,  as  judge  of  the  police  court  of  the  city  and  county  of  San 
Francisco,  state  of  California,  requiring  him  to  certify  to  this 
court  a  transcript  of  the  record  and  proceedings  in  the  matter 
of  the  "People  etc.  vs.  A.  B.  C,"  in  said  affidavit  mentioned,  on 
the  ground  therein  stated  that  in  said  proceedings  against  said 
A.  B.  C.  the  said  police  court  and  judge  thereof  acted  without 
and  in  excess  of  their  jurisdiction,  it  appearing  from  said  affi- 
davit that  the  writ  therein  prayed  for  should  be  issued ; 

It  is  ordered  that  a  writ  issue  out  of  and  under  the  seal  of  this 
court  addressed  to  D.  E.  F.,  as  judge  of  the  police  court  of  the 
city  and  coxDity  of  San  Francisco,  state  of  Californus,  command- 


952  New  Book  of  Forms. 

ing  him  to  certify  and  return  to  this  court  at  its  session  in  said 
city  and  county  of  San  Francisco  on  the  jc^  day  of  June,  1905, 
at  70  o'clock  A.  M.,  a  full  and  complete  transcript  of  the  record, 
judgment  and  proceedings  in  that  certain  matter  pending  in  said 
folice  court,  entitled  "People  of  the  State  of  California  vs.  G.  R. 
F.,"  to  the  intent  that  the  same  be  reviewed  by  this  court  as  to 
said  claim  of  said  petitioner  that  said  proceedings  and  judgment 
in  said  matter  was  without  or  in  excess  of  the  jurisdiction  of 
said  police  court  and  of  said  judge  thereof. 
NOTE.— California,  C.  C.  P.,  sees.' 1067-1077. 


No.   1583. — Writ — Attachment — Property. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California,  to  the  Sheriff  of  the  County 
of  San  Mateo,  Greeting: 

Whereas,  the  above-entitled  action  was  commenced  in  the  su- 
perior court  of  the  county  of  San  Mateo,  state  of  California,  by 
the  plaintiff  in  the  said  action,  to  recover  from  the  defendant  in 
the  said  action  the  sum  of  five  hundred  dollars,  gold  coin  of  the 
United  States,  besides  interest  at  the  rate  of  one  per  cent  per 
month,  from  the  eighteenth  day  of  December,  ipo6,  and  costs  of 
suit ;  and  the  necessary  affidavit  and  undertaking  herein  having 
been  filed  as  required  by  law : 

Now,  we  do  therefore  command  you,  the  said  sheriflf,  that  you 
attach  and  safely  keep  all  the  property  of  said  defendant,  within 
as  may  be  sufficient  to  satisfy  the  said  plaintiff's  demand,  as  above 
as  may  be  sufficient  to  satisfy  the  said  plaintiff's  demand,  as  above 
mentioned;  unless  the  said  defendant  give  you  security,  by  an 
undertaking  of  at  least  two  sufficient  sureties,  in  an  amount  suffi- 
cient to  satisfy  such  demand,  besides  costs,  or  in  an  amount  equal 
to  the  value  of  the  property  which  has  been  or  is  about  to  be  at- 
tached :  in  which  case  you  will  take  such  undertaking,  and  hereof 
make  due  and  legal  ser^dce  and  return. 

NOTE. — California,  C.  C.  P.,  sec.  540;  Alaska,  Codes,  pt.  4,  c.  14,  sec. 
138;  Arizona,  C.  C,  par.  341;  Idaho,  C.  C.  P.,  see.  3297;  Montana,  C.  C. 
P.,  sec.  891;  Nevada,  Comp.  Laws,  sec.  3221;  New  Mexico,  'Jomp.  Laws, 
sec.  2696;  North  Dakota,  C.  C,  sec.  5355;  Oregon,  Codes  and  Statutes, 
sec.  297;  South  Dakota,  C.  C.  P.,  sec.  208;  Utah,  Eev.  Stats.,  sec.  3069; 
Washington,  Ballinger's  Codes,  sec.  5351;  Wyoming,  Eev.  Stats.,  sec 
3989. 


Writ.  953 


No.  1584- — Writ — Arrest — Witness. 

[Title  of  Court  and  Cause.] 

The  People  of  the  State  of  California,  to  the  Sheriff  of  said  City 
and  County,  Greeting: 

You  are  hereby  commanded,  forthwith,  to  attach  the  body  of 
/.  D.,  defaulting  witness,  and  have  him  before  our  said  court  on 
Tuesday,  the  nineteenth  day  of  January,  1905,  then  and  there  to 
show  cause  why  he  should  not  be  punished  for  contempt,  in  dis- 
obeying a  subpoena  of  this  court  duly  served  on  him,  summoning 
him  to  appear  in  this  court  as  a  witness  on  the  eighteenth  day  of 
January,  igo6. 

(All  courts.) 

NOTE.— California,  C.  C.  P.,  sec.  238. 


No.    1585. — Writ — Juror — Attachment. 
[Title  of  Court  and  Cause.] 

You  are  hereby  commanded,  forthwith,  to  attach  the  body  of 
S.  L.  P.,  and  bring  him  before  the  superior  court  of  said  city  and 
county  of  San  Francisco,  to  receive  judgment  of  said  court  for 
failing  to  attend  and  serve  as  juror  in  said  court,  after  being  per- 
sonally served  with  a  summons  to  attend. 

Witness  Honorable  F.  H.  K.,  judge  of  the  said  superior  court, 
this  fourth  day  of  January,  1906. 

(All  courts.) 

NOTE.— California,  a  a  P.,  sec.  1993. 


954  New  Book  of  Forms. 

WRITTEN  INSTRUMENT— ALTERATION  OF. 


No.    1586. — Written   Instrument — Alteration    of    Subsequent 
to  the  California  Codes. 

San  Francisco,  CaMfomia,  .  yr^^^^U^^.J. . .  WrS^ 

\>>'^C^  •  • .  (^ffjJL^crt^ .  ajier  daie,  fo*   valai'^aetiivf'Ji 

rftf^rr:  /?...*/.   promise  to  pay  to  C/C  • . .  9/. <Vt^l^Trv- 

. . .  .^hrrri  .  .C:^^Trr^^rrr^rr?r^y  . , .  -^r  orio^-  the  svm  of 

. . .  ..^^U^riu.c^fiK^-.'-.'rfT*:. ,  ,4^^^-^if^^rTit^., .  i  i 

Dollars,  in  GhM----Q»m''-''^'-^i^&-^-mUid--ShfiiS  of'  America- of  thf^ 
pfosGni  effindard  of  ieoight  and  finortcoa,  with  interest  thereon  from 
date  until  paid,  at  the  rate  of  .^^\^^. . . . .  per  cent,  per  ^Ci^ri^. 
in  liJce  Gold  Coin,  payable  .  .^^^*^:»vv<  ^-ri-fCy. .  and  \f  not  m  paid^ 


jJhj  interoct  chali  be  added  to  thO' -principal  atid  eholl  bcaf-Uhe 
jntcro&i,  and- the  wfeo/g  noio  ohaU,"at  the  optioi^  of  the  hold-o^, 
toiihout  notice  to  the  makof- thereof ,  hcGOtno  dtto  and  ooUoctahlo: 

Alteration  of  Written  Instntments — Code  Law. — The  party  producing 
a  writing  which  has  been  altered,  or  appears  to  have  been  altered,  after 
its  execution,  in  a  part  material,  must  account  for  the  appearance-  He 
may  show  that  it  was  made  by  another,  without  his  concurrence,  or  was 
made  with  the  consent  of  all  the  parties,  or  otherwise  properly  or  inno- 
cently made,  or  that  the  alteration  did  not  change  the  meaning  of  the 
instrument.  If  he  do  that,  he  may  give  the  writing  in  evidence:  CaL  C. 
C.  P.,  sec.  1982. 

A  contract  in  writing  may  be  altered  by  a  contract  in  writing,  or  by 
an  executed  oral  agreement,  and  not  otherwise:  C.  C,  sec.  1698. 

The  alteration  or  destruction  of  a  duplicate  copy  while  the  other  ex- 
ists is  not  within  the  provisions  of  Civil  CJode,  sections  1698,  1701. 


Written  Instrument — Alteration  op.  955 

Alteration  of  Written  Instruments. — "Alteration"  of  an  agreement 
does  not  necessarily  mean  a  change  of  contract;  it  means  that  an  instru- 
ment in  writing  has  been  changed  in  form  since  its  execution. 

In  many  iligests  alterations  of  written  instruments  after  execution  by 
one  or  more,  but  not  all,  of  the  parties  to  it,  arc  lumped  with  modifica- 
tions, extensions,  and  changes  of  every  description  by  subsequent  con- 
tract of  all  the  parties.  Necessarily  such  work  makes  it  difficult  to  dis- 
cover every  case  in  which  the  subject  has  been  passed  upon  by  courts 
of  appeal;  but  it  is  a  satisfaction  to  be  able  to  state  that  it  is  thought 
that  every  important  reported  case  decided  by  the  supreme  court  of  the 
United  States  and  the  supreme  court  of  the  state  of  California  has  been 
examined  prior  to  the  writing  of  this  note. 

What  follows  was  written  as  an  introduction  to  Part  First  of  this 
book  and  discarded,  because  it  did  not  refer  to  any  particular  form,  and 
for  that  reason  was  not  germane  to  the  subject  of  Forms;  but  when  the 
book  was  so  far  ndvanced  that  there  was  no  place  for  it  at  the  opening, 
a  place  was  dir.covrred  for  it  as  a  note  to  an  altered  promissory  note. 

An  alteration,  in  mere  words,  of  an  instrument,  after  it  is  written,  is 
not  void  if  made  innocently  or  by  consent  of  the  parties.  The  practice 
is  to  note  the  changes  on  the  marofin  or  at  the  bottom  of  the  instru 
ni'nt,  and  to  initial  the  correction  by  a  notary  public.  If  the  signing 
parties  initial  the  changes,  that  precaution  is  not  valueless,  because  hand- 
writinff  is  of  some  value  as  evidence,  but  when  the  writing  is  recorded, 
the  writing  disappears  and  the  record  becomes,  for  most  practical  pur- 
poses, the  original  instrument.  It  is  not  permissible  to  make  erasures  in 
a  book  of  records  that  it  may  conform  to  the  original  document.  When 
the  altered  instrument  is  recorded  it  is  returned  to  the  person  at  whose 
request  the  record  was  made;  possibly  the  author  of  the  erasures,  and 
he  ought  not  have  it. 

Form  No.  ]5Sf),  not  appearing  to  have  been  altered  after  execution, 
a  party  off-'ring  it  need  not  account  for  its  appearance:  Sedgwick  v. 
Sedgwick,  56  Cal.  213.  Prior  to  the  Sedgwick  case,  alterations,  if  ma- 
terial, put  the  burden  of  proof  on  the  party  claiming  under  it. 

Alterations — Effect  of. — Section  19S2  of  the  California  Code  of  Civil 
Procedure  took  effect  in  1872.  P>efore  that  section  became  law,  unless 
materinl  altemtions  in  written  instruments  were  noted  on  the  instrument, 
the  holder  was  obliged  to  account  for  the  alteration.  In  Still  v.  lieese, 
47  Cal.  294,  it  was  said  an  alteration  made  after  signing,  if  made  inno- 
cently, and  to  make  the  instrument  conform  to  the  intention  of  the  par- 
ties is  not  void,  even  if  the   alteration  is  not  noted. 

In  Roberts  v.  Unger,  30  Cal.  G76,  it  was  said  an  alteration  would  not 
void  an  instrument  if  evidence  was  produced  to  show  that  it  was  made 
before  it  was  signed. 

In  Galland  v.  Jackman.  26  Cal.  80,  8.5  Am.  I>ec.  172,  it  was  said  that 
if  evidence  was  not  produced  to  show  how  and  why  a  material  altera- 
tion was  made,  the  instrument  would  be  read  as  it  was  before  the  altera- 
tion was  made. 

In  Turner  v.  Billagram,  2  Cal.  520,  it  was  said  that  no  alteration  will 
defeat  a  written  instrument  unless  it  materially  affects  the  rights  of 
an  obligor,  or  is  the  result  of  a  fraudulent  intent  to  do  so. 

If  a  tax  deed  appears  upon  its  face  to  have  been  altered  in  a  material 
respect  after  its  execution,  it  is  not  admissible  in  evidence:  Miller  v. 
Loco,  80  Cal.  257.  22  Pac.  253. 

An  official  bond  was  executed  and  signed  by  sureties.  After  execution 
"R. "  was,  by  the  other  sureties,  stricken  out  as  one  of  the  sureties. 
It  was  held  that  the  erasure  did  not  nullify  the  bon«l:  Los  Angeles  v. 
Melius,  59  Cal.  444. 


95^ 


New  Book  of  Forms. 


A  bond  was,  by  mistake,  made  to  a  sheriff  instead  of  a  party  to  be 
protected  by  it;  the  name  of  the  sheriff  was  erased  and  that  of  the 
party  inserted.  Bond  was  held  to  be  good:  Turner  v.  Billagram,  2  CaL 
520.' 

After  the  execution  of  an  indemnity  bond  to  a  sheriff,  "C.  J.  H. "  was 
erased,  and  "J.  M.  B. "  was  substituted  as  the  claimant  of  the  property; 
and  then  once  more  changing  it  by  restoring  "  C.  J.  H."  and  erasing 
"J.  M.  B."     Bond  upheld:  Rogers  v.  Shaw,  59  Cal.  260. 

An  alteration  in  a  promissory  note  which  does  not  vary  the  contract 
is  immaterial:  Humphreys  v.  Crane,  5  Cal.  173;  First  Nat.  Bank  of  Oak- 
land V.  Wolff,  79  Cal.  69,  21  Pac.  551,  748. 

If  a  disinterested  person  who  has  no  authority  to  make  an  alteration 
in  an  instrument  makes  one,  it  does  not  change  the  writing:  Langen- 
berger  v.  Kraeger,  48  Cal.  147,  17  Am.  Kep.  418. 

If  made  bv  consent  of  the  parties,  it  does  not  invalidate:  Anderson 
V.  DoU,  27  Cal.  607. 

If  a  printed  form  is  used,  it  will  be  presumed  that  the  erasure  was 
made  before  the  execution  of  the  instrument:  Corcoran  v.  Doll,  32  CaL 
82. 

After  an  award  has  been  made,  the  arbitrators  cannot  alter  it  even  to 
correct  mistakes,  without  the  consent  of  the  parties:  Dudley  v.  Thomas, 
23  Cal.  365. 

Filling  a  blank  in  a  note  as  to  the  rate  of  interest  is  not  such  an 
alteration  as  will  vitiate  it;  but  it  docs  not  bind  the  maker  as  to  the 
rate  filled  in,  and  docs  not  avoid  the  payment  of  legal  interest:  Fisher 
V.  Dennis,  6  Cal.  577,  iio  Am.  Dec.  534. 

An  account-book  is  sometimes  classified  as  an  instrument  in  writing. 
Such  a  book  contained  the  following  entry:  "June  30,  1S59,  P.  W.  S. 
credit,  by  cash,  $135.00."  In  October,  -1859,  the  bookkeeper  altered  the 
entry  by  crossing  out  "by"  and  inserting  "to"  in  its  place,  and  changed 
the  word  "credit"  and  inserted  "debtor"  in  its  place;  all  without  the 
knowledge  or  consent  of  P.  W,  S.  No  explanation  being  offered,  the 
court  allowed  P.  W.  S.  the  credit  as  entered  June  30,  1859:  Sheile  v. 
West,  17  Cal.  324. 

"When  a  check  drawn  against  money  in  bank  is  altered  after  it  has 
left  the  hands  of  the  drawee,  by  increasing  its  amount,  the  drawee  may 
recover  from  an  innocent  holder,  to  whom  it  was  paid,  the  excess  over 
the  true  amount  of  the  check.  If  on  its  face  there  is  enough  to  cause 
suspicion  o  fraud,  or  if  the  drawee  has  information  sufficient  to  cause 
a  prudent  person  to  suspect  that  the  check  has  been  altered,  he  cannot 
recover:  Rcddington  v.  Woods,  45  Cal.  406,  13  Am.  Rep.  190. 

As  to  partnership  books,  c  partner  has  no  right  to  alter  them  and 
then  offer  them  as  evidence  until  the  alteration  has  been  satisfactorily 
accounted  for:  Butler  v.  Beech,  55  Cal.  28. 

If  a  note  secured  by  mortgage  is  afterward  so  far  changed  as  to  lose 
its  identity,  the  mortgage  cannot  be  enforced  as  against  subsequent  en- 
cumbrancers: Poett  V.  Steams,  31  Cal.  78.  (That  was  said  in  Poett  v. 
Stearns,  but  was  not  there  decided.  A  promissory  note  at  its  best 
being  only  evidence  of  a  debt,  and  a  note  not  being  a  necessary  part  of  a 
mortgage,    it    is    not    clear    why    it    was    mentioned    at    all.) 

A  promissory  note  was  altered  by  changing  the  date  from  "1871"  to 
"1870."  It  not  appearing  that  the  alteration  was  made  after  the  exe- 
cution of  the  note,  it  was  upheld:  Sedgwick  v.  Sedgwick,  56  Cal.  616. 

Alteration — Effect  of. — After  a  note  was  executed  it  was  altered  with- 
out the  consent  of  indorsers  so  as  to  make  it  payable  in  the  state  of 
New  York.  The  indorsers  were,  by  such  alteration,  discharged:  Pelton 
V.  San  Jacinto  Lumber  Co.,  113  Cal.  21,  45  Pac.  12. 


Written  Instrument — Alteration  of.  957 

The  general  rule  that  a  material  alteration  avoids  a  contract  even  in 
the  hands  of  innocent  holders  has  application  to  cases  where  the  altera- 
tion is  by  the  payee  or  party  seeking  to  enforce  the  contract.  If  the 
alteration  is  by  a  stranger  to  the  contract,  the  rule  does  not  apply. 
Any  unauthorized  change  in  commercial  paper,  deeds,  and  other  " scaled" 
instruments  destroys  the  integrity  of  the  instrument  as  the  contract 
which  the  maker  has  executed:  Walsh  v.  Hunt,  120  Cal.  40,  52  Pac.  115. 

This  case  is  broadened  somewhat  by  an  inadvertent  use  of  the  word 
"sealed."  The  altered  instrument  in  that  case  was  a  promissory  note 
not  under  seal.  In  California  there  is  no  distinction  between  sealed 
and  unsealed  contracts:   C.  C,  sec.  1629. 

Unauthorized  material  change  in  an  instrument,  in  the  hands  of  an 
innocent  bolder,  destroys  it  as  the  contract  executed  by  the  maker. 
This  rule  applies  to  all  commercial  paper,  deeds,  etc.,  and  sealed  instru- 
ments: Walsh  V.  Hunt,  120  Cal.  47,  52  Pac.  115. 

A  guarantor  is  released  by  any  material  alteration  of  the  terms  of 
his  guaranty  without  his  consent:  Driscoll  v.  Winters,  122  Cal.  65,  54 
Pac.  8S7. 

The  same  rule  applies  to  Lureties  on  a  bond.  In  this  case  it  was  an 
appeal  bond:   Clarke  v.  Mohr,  125  Cal.  540,  58  Pac.  176. 

Under  section  1698,  Civil  Code,  a  promissory  note  is  a  contract,  and 
can  only  be  altered  by  a  contract  in  writing  or  by  an  executed  oral 
agreement:  Thompson  v.  Corner.  104  Cal.  168,  43  Am.  St.  Eep.  81,  37 
Pac.  900.  That  section  of  the  code  and  case  appear  to  be  broad  enough 
to  uphold  any  interlineation  or  erasure,  provided  it  was  agreed  in  writ- 
ing that  it  might  be  made,  or  if  it  was  orally  agreed  that  it  might  be 
made. 

Alteration — Effect  of. — ^In  United  States  supreme  and  other  courts, 
when  it  is  established  that  an  instrument  has  been  altered,  the  material- 
ity of  the  alteration  or  erasure  is  a  question  for  a  court  to  decide:  Wood 
V.  Steele,  6  Wall.  83;  but  it  is  for  a  jury  to  say  whrther  an  alteration  has 
been  made:  Steele's  Lessee  v.  Spencer,  1  Pet.  560.  The  alter.-ition  to 
avoid  an  instrument  must  be  harmful;  there  it  is  said  that  the  addition  of 
a  surety  to  a  promissory  note,  without  the  consent  of  the  maker,  does  not 
discharge  him:  Mersman  v.  Werges,  112  U.  S.  141,  5  Sup.  Ct.  Rep.  65. 

An  alteration  apparent  on  the  face  of  an  instrument  does  not  avoid 
it  unless  shown  to  have  been  made  fraudulently  or  without  consent  of 
parties:  Speake  v.  United  States,  9  Cranch,  37. 

A  holder  of  materially  altered  commercial  paper  cannot  fall  back  upon 
the  paper  as  it  was  when  executed,  because  such  alteration  annuls  the 
instrument:  Wood  v.  Steel,  6  Wall,  82;  and  it  is  said  in  the  same  ease  by 
way  of  example,  "that  the  law  regards  altered  commercial  paper  as 
forged  paper,  and  the  doctrine  of  'innocent  holder  does  not'  apply  there- 
to": See  to  same  point,  Angle  v.  N.  W.  Mut.  L.  Ins.  Co.,  92  U.  S.  342. 

A  deed  with  description  altered  after  delivery  and  recording  is  not 
effective  as  to  alterations  until  re-execution:  Moelle  v.  Sherwood,  148  U. 
S.  27,  13  Sup.  Ct.  Rep.  426. 

The  same  case,  in  referring  to  the  laws  of  Nebraska,  says  there:  "If 
valid  between  parties  when  altered  after  record,  is  void  against  deeds 
already  recorded  by  subsequent   purchasers   without  notice." 

Those  claiming  under  altered  instruments  which  appear  on  their  faces 
to  have  been  altered  must  explain  the  alteration  if  the  alteration  is  al- 
leged by  the  opposite  party:  United  States  v.  Lynn,  1  How.  112. 

The  presumption  is  that  alterations  were  made  before  execution:  Lit- 
tle v.  Hemdon,  10  Wall.  31;  Hanrick  v.  Patrick,  119  U.  S.  172,  7  Sup.  Ct. 
Rep.   147. 

A  clerk  has  no  authority  to  alter  the  record  of  his  certificate  of  ac- 
knowledgment after  the  record  was  made.  Money  paid  by  mistake,  on 
raised  or  altered  check,  neither  party  being  at  fault,  may  be  recovered: 


958  New  Book  of  Forms. 

Espy  V.  Bank  of  Cincinnati,  18  "Wall.  615;  bnt  if  eitbcT  party  has  been 
guilty  of  negligence  whereby  the  other  has  been  injured  he  must  bear 
the  loss:  Elliott  v.  Piersal,  1  Pet.  341. 

The  fact  of  negligence  in  such  cases  is  to  be  left  to  the  jury:  Leather 
etc.  Bnnk  v.  Morgan.  117  U.  S.  122,  6  Sup.  Ct.  Rep.  657. 

Husband  and  wife  executed  note  to  secure  mortgage  by  husband 
and  partner,  and  indorsed  by  partner.  Partner  adds  partner's  name  to 
wife's  to  the  note  without  her  or  her  husband's  consent.  Good  as 
against  one  lending  money  on  note:  Mersman  v.  Werges,  112  TJ.  S.  143, 
5  Sup.  Ct.  Rep.  65. 

Adding  Names. — Adding  name  of  surety  without  the  consent  of  the 
maker  is  a  material  alteration:  Mersman  v.  Werges,  112  U.  S.  139,  5 
Sup.  Ct.  Rep.  65. 

Substitution  of  Surety. — A  surety  signed  and  delivered  a  note.  The 
maker  obtained  the  signature  of  another  surety  instead  of  the  one 
aj,reed  upon.  Held  not  to  be  a  material  alteration:  Ward  v.  Hacket,  44 
Am.  Rep.  187. 

Payee  Signing  Note. — After  a  maker  delivered  his  note  to  payee,  the 
payee,  without  the  maker's  knowledge,  signed  it  as  security  and  indorsed 
tne  note;  not  material  alteration:  Morgan  v.  Vandermark,  1  White  &  W. 
Civ.  Cas.  Ct.  App.,  see.  511. 

Alteration  of  Name  of  Payee. — Erasure  of  payee's  name  and  substitu- 
tion of  another  after  delivery  is  material:  Horn  v.  Newton  City  Bank, 
32  Kan.   518,  4  Pac.   1022. 

Mistake  Corrected. — A  sheriff  took  a  bond  to  dissolve  an  attachment, 
and  after  execution  altered  the  Christian  name.  Held,  not  material: 
State  v.  Dean,  40  Mo.  464. 

Consideration. — A  promissory  note  did  not  state  that  it  was  for  a 
consideration,  nor  for  value  received.  An  alteration  stating  a  considera- 
tion was  material:  Law  v.  Argrove,  30  Ga.  129. 

Joint  and  Several  Liability. — Altering  a  note  so  as  to  read  "We  prom- 
ise" from  "I  promise"  is  not  material:  Eddy  v.  Bond,  36  Am.  Dec.  767. 

Interest  Claijse  in  Note. — The  additional  words,  "with  interest  from 
date,"  is  a  material  alteration:  Brown  v.  Jones,  3  Port.  420. 

Gold  Clause  in  a  Note. — Adding  it  is  material  as  to  surety:  Hanson  v. 
Crawley,  41  Ga.  303. 

Demand  and  Notice  Waived. — Writing  over  an  indorsement  in  blank 
the  words  "demand  and  notice  waived"  is  a  material  alteration:  An- 
drews V.  Simms,  33  Ark.  771. 

Conveyances. — The  addition  of  property  to  the  description  in  a  deed 
is  a  material  alteration:  Moelle  v.  Sherwood,  148  U.  S.  21,  13  Sup.  Ct. 
Rep.  426. 

Bonds. — Interlineation  in  a  bond  prescribing  additional  duties  is  a 
material  alteration:  Miller  v.  Stewart,  4  Wash.  C.  C.  26. 

Alteration    of    date    in    a   bond    after   execution    from    " day   of 

Dec,  1823,"  to  "3d  day  of  May,  1824,"  is  immaterial:  State  v.  Miller, 
3  Gill.  335. 

Date  of  Note. — Change  in  date  of  a  note  is  material,  whether  the  time 
of  payment  is  extended  or  hastened:  Brown  v.  Straw,  29  Am.  Rep.  369. 

Place  of  Payment. — Alteration  of  place  of  payment  is  not  material: 
Major  v.  Hansen,  2  Biss.  195. 

Erasure  of  the  place  of  payment  is  material:  White  v.  Hass,  70  Am. 
Dec.  548. 

The  addition  to  a  note  of  a  particular  place  of  payment  is  material: 
South wark  Bank  v.   Gross,  35  Pa.   St.   80. 


WRiTfTEN  Instrument — Alteration  op.  959 

Blanks,  Filling. — Tt  is  not  an  altpration  of  an  instrument  to  fill  a 
blank:  Visher  v.  Wobstor,  8  Cal.  109;  Smith  v.  Crocker,  5  Mass.  538; 
Brisco  V.  Reynolds,  51  Iowa,  672;  Stahl  v.  Bcrger,  13  Am.  Dec.  666. 

The  place  of  payment  was  left  blank  in  a  note.  It  was  orally  a^eed 
that  it  was  not  to  be  sued  or  collected  at  any  place  than  the  residence 
of  the  maker.  After  execution  the  payee  filled  in  the  blank  by  insert- 
ing the  name  and  lociition  of  a  bank.  A  material  alteration:  Charlton 
V.  Reed,  47  Am.  Rep.  808. 

Signature  Altered. — Note  signed  "TL,  Treasurer  of  St.  Paul's  Parish," 
altered  so  as  to  read  "H.,  Treasurer  for  St.  Paul's  Parish,"  held  a  mate- 
rial alteration:  Sheridan  v.  Carpenter,  61  Me.  83. 

The  addition  of  an  initial  letter  to  a  signature  to  a  note  is  a  material 
alteration:   King  v.   Rea,   13   Colo.   69.  21   Pac.   1084. 

Writing  "Security"  over  indorser's  name  without  his  authority  dis- 
charges him:   Id. 

Writing  the  residences  of  indorsers  after  their  names  is  not  material: 
Struthers  v.  Kendall,  80  Am.  Dec.  610. 

Addiug  the  word  "Agent"  to  the  signature  of  a  note  at  the  request 
of  the  pavee  without  the  consent  of  the  indorser  is  material:  Bank  v. 
Follett,  23  Am.  Rep.  418. 

Erasure  of  Signature. — The  erasure  of  the  name  of  one  of  the  obligors 
of  an  official  bond  is  material:  Smith  v.  U.  S.,  69  U.  S.  219;  State  v. 
Blair.  32  Ind.  313. 

Erasure  of  Other  Words. — Erasing  the  word  "surety"  after  the  name 
of  a  signer  of  a  note  before  indorsement  is  material:  Lanb  v.  Paine,  26 
Am.  Rep.  163. 

Addition  to  Signature. — .After  the  sigTier's  name  to  a  note  was  added, 
"Trustees  of  the  church."  Held  not  a  material  alteration,  be- 
cause it  does  not  make  it  the  obligation  of  the  church:  Hayes  v.  Mat- 
tno^s,   30   Am.   Dec.    226. 

Alteration  of  Signature. — The  alteration  of  a  note,  not  before  wit- 
nessed by  a  person  not  present  at  the  signing  is  a  material  alteration: 
Homer  v.  Wallis.  11  Mass.  309.  6  Am.  Dec.  169. 

Memoranda  of  Extrinsic  Facts. — A  memorandum  indorsed  on  a  bill  for 
parpose  of  identification  is  not  a  mutilation:  Manning  v.  Muronev,  13 
Am.  St.  Rep.  67. 

As  to  Amount. — If  the  alteration  is  not  material,  the  instrument  is 
not  affected  by  it:  Kinard  v.  Glenn.  29  S.  C.  590,  8  S.  E.  203. 

As  to  Rate  of  Interest. — A  memorandum  on  a  note  that  after  a  certain 
day  the  internet  will  bo  less  than  that  stated  in  the  note  is  not  material: 
Cambridge  v.  Hyde,  41  Am.  Rep.  193. 

Extension  of  Time. — An  indorsement  extending  time  of  payment  is 
not  a  material  alteration:  Moore  v.  Macon  Sav.  Bank.  22  Mo.  App.  684. 

Erasure  of  Memorandum. — Tearing  away  with  the  obligor's  consent  a 
memorandum  at  the  foot  of  a  note  is  not  an  alteration:  Price  v.  Cockson, 
4  Ky.  570. 

Attached  Writinsrs. — A  bond  to  which  a  writing  has  been  attached  is 
materially  altered  by  tearing  it  off:  Price  v.  Tollman,  1  N.  J.  L.  447. 

A  condition  affecting  a  note  was  written  on  the  stub  to  which  the 
note  was  attached  in  a  book  of  blank  notes.  The  payee  after  execu- 
tion tore  the  note  off.  A  material  alteration:  Stephens  v.  Davis,  85 
Tcnn.   271,   2   S.  W.   382. 

Time  of  Alteration. — If  an  alteration  is  made  by  one  of  the  makers  of 
a  note  without  the  consent  of  the  surety  it  vitiates  it  as  to  him.  though 
made  before  the  note  was  delivered:  Britton  v.  Dierker,  2  Am.  Rep.  553. 


960  New  Book  of  Forms. 

Deed  Altered. — If  the  name  of  a  grantee  in  a  deed  is  filled  in  a  blank 
left  for  his  name,  after  its  execution,  the  deed  is  void:  Chase  v.  Palmer, 
29  Til.   306. 

Alterations — Burden  of  Proof. — Action  was  brought  on  a  note.  The 
seal  of  an  indorser  was  obliterated  by  a  blot  of  ink,  of  a  color  different 
from  the  signatures.  Held,  that  plaintiff  must  show  how  the  seal  was 
obliterated:  Organ  v.  Allison,  68  Tenn.  459. 

A  married  woman  aflRxed  her  signature  as  an  additional  obligor  to  a 
note,  executed  and  delivered.  The  burden  of  showing  that  she  had  a 
separate  estate  (so  that  the  addition  of  her  signature  to  the  instnimont 
was  material)  is  on  him  who  insists  that  her  signature  constitutes 
an  alteration  of  the  instrument:  Williams  v.  Jensen,  75  Mo.  681. 

Where  the  controversy  relates  to  whether  an  erasure  of  the  words 
"after  due"  in  the  printed  form,  following  the  rate  of  interest,  was 
made  after  or  before  the  execution  of  the  note,  the  plaintiff  must  show 
that  the  note,  in  the  shape  in  which  he  produces  it,  was  executefl  nn.l 
delivered  by  the   defendant:    Willett  v.   Shepard,   34   Mich._  106. 

If  a  note  does  not  show  upon  its  face  evidence  of  alteration,  the  b'lr- 
den  is  on  the  -oerson  alleging  it  to  prove  it  as  alleged:  Montgomery  v. 
Crossthwait.  24  Am.  St.  Bep.  832. 

A  plaintiff  claimed  that  a  deed  under  which  defendant  claims  title 
has  been  fraudulentlv  altered.  The  burden  is  on  him  to  show  it:  Put- 
nam V.  Clark.  29  N.  J.  Eq.  412. 

Upon  the  face  of  a  note  appeared  the  words  "ten  per  cent"  in  ink, 
of  a  different  color  from  that  of  the  body  of  the  note.  That  fact  did 
not  put  on  plaintiff  the  burden  to  show  that  the  words  "ten  per  cent" 
were  made  by  authority  of  defendant,  or  before  the  execution  of  the 
note,  in  order  to  recover  on  the  note:  .Tones  v.  Ireland.  4  Iowa.  63.  ^ 

The  fact  that  material  words  were  written  in  a  note  with  different  ink, 
and  in  a  different  handwriting  from  the  body  of  the  note  does  not  cast 
the  burden  of  proving  that  there  was  no  alteration,  or  explaining  it,  on 
the  plaintiff,  the  payee:   Ault  v.  Fleming,  7  Towa,  143. 

He  who  -pleads  a  material  altera+ion  of  a  contract  must  prove  it: 
Wing  V.  Stewart.  68  Iowa,  13,  25  N.  W.  905. 

The  acceptor  of  a  bill  of  exchange,  defending  on  the  ground  of  ma- 
terial alteration,  since  acceptance,  must  prove  the  alteration,  if  it  is  not 
apparent,  on  the  face  of  the  bill.  If  the  alteration  is  apparent,  the 
burden  is  on  the  holder  to  show  that  it  was  made  before  acceptance: 
Harris  v.  Bank  of  Jacksonville,  22  Fla.   501,  1   Am.  St.  Rep.  201. 

In  an  action  on  an  insurance  policy,  if  defendant  claims  that  an  al- 
teration has  been  made,  and  if  the  policy  does  not.  on  its  face,  show 
an  a]J;eration  after  execution,  the  burden  is  on  the  defendant  to  show  the 
alteration:  Insurance  Co.  v.  Brim,  111  Ind.  281,  12  K  E.  315. 

As  a  rule  the  burden  of  proof  is  on  a  party  attempting  to  enforce 
a  contract,  to  account  for  a  material  alteration  made  in  it  after  delivery, 
bnt  this  does  not  apply  to  a  defendant  in  an  action  brought  to  have  a 
security  canceled  upon  that  ground,  if  it  appears  that  he  is  not  charge- 
able with  bad  faith  in  regard  to  the  alteration:  Town  of  Solon  v.  Will- 
iamsburgh  Sav.  Bank,  114  N.  Y.  122,  21  N.  E.  168. 

Action  on  a  note.  The  complaint  alleges  that  it  was  executed  under 
seal.  The  defendant  answers  by  general  denial.  In  such  case  the  burden 
is  on  plaintiff  to  prove  that  the  note  was  not  altered  after  delivery, 
by  the  addition  of  a  seal:  Farmers'  Loan  &  Trust  Co.  v.  Siefke,  144  N. 
Y.  354,  39  N.  E.  358. 


ADDENDA. 


No.   1 587. — Acknowledgment — Oregon — Corporation. 

State  of  Oregon, 
County  of  Sherman, — ss. 

On  this  jrf  day  of  Jurie,  igo6,  before  me  appeared  A.  B.,  to 
me  personally  known,  who,  being  duly  sworn  [or  affirmed]  did 
say  that  he  is  the  president  [or  other  officer,  officers,  or  agents  of 
the  corporation]  of  [describing  the  corporation],  and  that  the  seal 
affixed  to  said  instrument  is  the  corporate  seal  of  said  corpora- 
tion, and  that  said  instrument  was  signed  and  sealed  on  behalf 
of  said  corporation  by  authority  of  its  board  of  directors,  and 
said  A.  B.  acknowledged  said  instrument  to  be  the  free  act  and 
deed  of  said  corporation. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed 
my  official  seal,  this  the  day  and  year  first  in  this  my  certificate 
written. 


[Title  of  Officer  Taking  Acknowledgment.] 
NOTE. — General  Laws  of  Oregon,  pp.  115,  1905. 


No.  1588. — Affidavit  that  a  Defendant  is  Concealing  Himself 
to  Avoid  the  Service  of  Summons. 

[Title  of  Court  and  Cause.] 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

C.  D.,  being  sworn,  says  that  he  is  the  plaintiff  in  the  above- 
entitled  action.  That  A.  B.  \s,  z.  necessary  defendant  in  said  ac- 
tion. That  he  has  not  been  served  with  summons  herein,  nor  has 
he  appeared ;  and  he  cannot  be  found  at  his  place  of  rcsidmcc,  or 
at  his  place  of  business,  and  is  concealing  himself  to  avoid  the 
service  of  summons  ;  [or,  if  his  place  of  residence  or  place  of  busi- 
ness cannot  be  ascertained]  that  affiant,  for  the  purpose  of  find- 
ing said  defendant,  has  made  diligent  inquiry  of  his  Zinfe,  at  his 
New  Forms — 61  (961) 


962  Addenda. 

place  of  residence,  to  wit.  No.  ^7^7  ^'^cip^c  street  in  the  said  city 
and  county,  and  among-  his  neighbors,  friends  and  in  the  corner 
grocery  and  saloon  nearest  his  said  residence,  and  has  been  un- 
able to  ascertain  where  he  can  be  found. 

Wherefore  affiant  requests  the  court  to  order  said  summons  to 
be  serv^ed  by  posting  and  mailing  as  by  law  requested. 

NOTE.— California,  C.  C.  P.,  sec.  1167. 


No.     1589. — Amendment     to     Pleadings — Justice's     Court — 

Docket  Order. 

[Title  of  Court  and  Cause.] 

After  issue  joined  in  the  above-entitled  action,  and  before  the 
conclusion  of  the  trial,  the  plaintifiF  amended  his  complaint  by 
striking  out  the  words  and  figures,  "^^75.50,"  and  inserting  the 
-words  and  figures  "$2py.§o" ;  the  said  $2p^.§0  being  the  amount 
he  claimed  to  be  due  him  from  defendant.  The  defendant  then 
stated,  under  oath  administered  to  him  by  me,  that  an  adjourn- 
ment was  necessary  so  that  he  could  make  inquiry  as  to  the  jus- 
tice of  said  increase  in  the  amount  plaintiff  claimed  to  be  due, 
and  the  court  being  satisfied  that  adjournment  was  necessary, 
ordered  that  said  amendment  be  allowed  upon  the  payment  of 
$20.00  to  defendant  by  plaintiff.  PlaintifiF  refused  to  pay  said 
amount  and  the  trial  proceeded.  To  which  order  plaintiff  then 
and  there  excepted. 

NOTE. — California,  C.  C.  P.,  see.  859. 


No.  1590. — Certificate  of  Residence. 

State  of  California, 

City  and  County  of  San  Francisco, — ss. 

A.  B.,  C.  D.  and  B.  P.,  being  sworn,  say:  That  they  are  part- 
ners, doing  business  in  several  cities  and  counties  in  said  state, 
tinder  the  firm  name  of  "A.  B.,  C.  D.  &  Co."  That  the  place 
of  residence  of  said  firm  is  the  city  and  county  of  San  Francisco, 
state  of  California,  and  is  the  place  where  service  of  summons 
may  be  made  upon  said  firm. 

NOTE.— California,  C.  C.  P.,  sec.  1163. 


Addenda.  963 


No.  1591. — Clause  in  Deed  Reciting  Former  Name  of  Grantor. 

In  witness  whereof,  I,  A.  B.  C,  hereto  set  my  hand  this  5J  day 
of  June,  ipo6,  and  say  that  A.  B.  A.  was  the  name  in  which  I 
derived  title  to  tlie  real  estate  described  herein,  but  which  name 
was  changed  by  my  marriage  to  A.  B.  C. 

NOTE. — California,  C.  C,  sec.  1096.  It  is  thought  that  it  would  be 
good  practice  to  insert  the  facts  causing  the  chango  of  name  where 
they  would  be  under  the  eye  of  the  grantor  at  the  moment  of  executing 
the  instrument. 


No.  1592, — Deed — Commencement  of  Reciting  Former  Name 

of  Grantor. 

Know  All  Men,  that  I,  A.  B.  C.  (formerly  F.  L.  P.,  under 
which  name  I  derived  title  to  the  real  estate  hereinafter  de- 
scribed, but  which  name  was  changed  to  A.  B.  C.  by  order  of  the 
superior  court  of  the  county  of  Butte,  entered  on  the  jd  day  of 
June,  ipo^,  in  the  records  of  said  court),  have  granted  to  [con- 
tinue as  other  deeds.     See  Deeds — Grants — Conveyances]. 


No.    1593. — Lost   Property — Appraisement   of. 

We,  the  undersigned,  appointed  to  appraise  the  property  de- 
scribed in  the  affidavit  of  A.  B.  C,  on  file  in  the  office  of  A.  L.  B., 
justice  of  the  peace  of  Bolinas  township,  county  of  Marin,  Cali- 
fornia [See  form  No.  274],  and  described  herein  as  follows,  to 
wit  [description  the  same  as  in  No.  1282],  hereby  appraise  said 
property  at  $100. 

NOTE. — The  finder  must  make  and  file  the  affidavit  referred  to  within 
five  days  from  the  finding,  with  the  justice  of  the  peace  of  the  county, 
whose  office  is  nearest  the  place  of  finding,  describing  the  property 
and  time  and  place  of  finding,  and  all  the  circumstances  of  the  finding. 
Then  the  justice  summons  three  appraisers.  They  examine  and  appraise 
the  property  and  describe  and  deliver  to  the  finder,  who  must,  within 
five  days,  have  the  appraisement  recorded  in  the  recorder's  office  of 
the  county  where  found:  Cal.  C.  C,  sec.  1865. 


No,    1594- — Order — Deposition   to   be   Taken   of   Nonresident 
Witness  to  Will. 

[Title  of  Court  and  Estate.] 

At  the  time  fixed  for  hearing  the  application  of  A.  B.  for  let- 
ters testamentary  upon  tlie  will  of  O.  B.,  deceased,  it  appeared 


964  Addenda. 

that  none  of  the  subscribing  witnesses  to  said  will  reside  in  the 
city  and  county  of  San  Francisco,  state  of  California,  and  it  also 
appeared  that  the  deposition  of  A.  L.,  one  of  said  subscribing 
witnesses,  can  be  taken  in  the  county  of  Los  Angeles,  in  said 
state;  it  is  ordered  that  the  deposition  of  said  A.  L.  be  taken  on 
July  J,  1906.  before  A.  P.,  a  notary  public  at  10  o'clock  A.  M., 
and  that  a  photographic  copy  of  the  said  will  be  made  and  pre- 
sented to  said  witness  on  his  examination,  who  may  be  asked 
by  said  notary,  or  E.  L.  B.,  the  attorney  who  presented  said  will 
to  the  court  for  probate,  the  same  questions  with  respect  to  said 
will,  and  the  handwriting  of  himself,  the  testator,  and  the  other 
witnesses  as  would  be  pertinent  and  competent  if  the  original  will 
were  present. 

NOTE. — California,  C.  C.  P.,  sec.  1308. 


No.  1595. — Order  Directing  Summons  to  be  Served  by  Fixing 
a  Copy  in  a  Conspicuous  Place  on  the  Property  Involved 
in  the  Action. 

[Title  of  Court  and  Cause.] 

It  appearing  to  the  court  that  defendant,  A.  B.,  is  concealing 
himself  to  avoid  the  service  of  summons  in  the  above-entitled  ac- 
tion; and  he  cannot  be  found  at  his  place  of  residence  or  Imsiness 
[or.  That  the  place  of  business  of  defendant  A.  B.  cannot  be  as- 
certained; or,  that  the  place  of  residence  of  defendant  A.  B.  can- 
not be  ascertained]  : 

It  is  ordered  that  the  summons  herein  be  served  by  afiixing  a 
copy  thereof  in  a  conspicuous  place  on  the  property  involved  in 
this  action,  and  also  by  delivering  a  copy  to  a  person  residing  on 
said  property,  if  such  person  can  be  found,  and  also  by  sending  a 
copy  thereof  through  the  mail  addressed  to  the  said  defendant 
A.  B.  at  the  place  where  the  property  is  situated. 

NOTE. — California,  C.  C.  P.,  sec.  1167.  In  all  such  cases  the  affidavit 
of  service  must  conform  to  the  provisions  of  the  statute  regulating  ser- 
vice  of  legal   documents  by  mail. 


No.  1596. — Petition  for  an  Order  Directing  Administrator  to 
Convey  Real  Estate. 

[Title  of  Court  and  Estate,] 

State  of  California, 
County  of  Butte, — ss. 

The  petition  of  A.  B.  represents  to  the  court  that  on  Mcty  J, 
jpo4,  the  said  C.  D.,  since  deceased,  contracted  with  petitioner. 


Addenda,  f/'/S 

in  writing,  to  convey  to  him  all  that  land  described  as  follows,  to 
wit  [description].  That  in  consideration  of  said  promise  peti- 
tioner then  and  there  paid  deceased  one  thousand  dollars,  and 
agreed  to  pay  him  one  tJiousand  dollars  in  addition  on  May  5, 
ipo^,  without  interest,  and  also  to  pay  all  taxes  levied  on  said 
land  subsequent  to  May  5,  1^04.  A  copy  of  said  contract  is 
hereto  attached  and  herein  referred  to,  marked  Exhibit  "A,"  and 
made  part  of  this  petition. 

That  said  C.  D.  died  intestate  on  the  first  day  of  March.  IQO^, 
and  O.  F.  was  by  this  court  on  May  j,  iQOf),  appointed  adminis- 
trator of  the  said  deceased,  and  letters  of  administration  were  is- 
sued to  him,  and  he  is  now  the  administrator  of  said  estate. 

Wherefore  petitioner  prays  for  an  order  directing  said  admin- 
istrator to  convey  said  real  estate  to  him,  by  an  acknowledged 
grant  to  him  of  the  balance  due  as  provided  in  said  contract. 

NOTE.— California,  C.  C.  P.,  sec.  1598. 


No.  1597. — Petition  for  an  Order  Directing  Administrator  to 
Transfer  and  Deliver  Personal  Property  to  Petitioner 
upon  Payment  of  Balance  Due. 

[Title  of  Court  and  Estate.] 

[The  same  as  No.  1596,  omitting  taxes,  unless  it  was  agreed 
that  petitioner  should  pay  them;  and  conclude  as  follows:] 

Wherefore,  petitioner  prays  for  an  order  directing  said  ad- 
ministrator to  transfer  by  bill  of  sale,  and  deliver  said  personal 
property  to  him  upon  payment  of  the  balance  due  as  provided 
in  said  contract. 

NOTK— California,  C  C.  P.,  sec.  1598. 


No.  1598, — Return  (or  Certificate)  of  Service  of  Summons — 
Residence   of    Person    Summoned- 

[Title  of  Court  and  Cause.] 

State  of  California, 
County  of  Sacramento, — ss, 

I  hereby  certify  that  I  received  the  within  [or  annexed]  sum- 
mons on  the  ^d  day  of  June,  igo6,  and  on  the  5//;  day  of  June, 
IQ06,  I  attempted  to  serve  it  on  the  defendant  described  therein  at 
the  city  of  Sacramento,  in  the  county  of  Sacra^ncnto,  in  said  state, 


966  ADDiiNDA. 

that  being  the  place  named  by  said  defendant  in  his  certificate  of 
residence  filed  in  the  office  of  the  county  recorder  of  said  county 
of  Sacramento,  rhat  in  order  to  serve  said  defendant  I  made 
dihgent  inquiry'  of  merchants  and  others  engaged  in  the  same  Hne 
of  business  I  was  informed  said  defendant  was  engaged  in,  and 
also  carefully  examined  the  great  register  of  said  county  for  his 
name,  and  also  the  city  directory  and  telephone  directory  for  the 
years  igo^  and  ig)o6,  and  also  the  list  of  taxpayers  of  said  city 
and  county,  and  could  not  discover  his  name  or  any  name  resem- 
bling it. 

[See  form  No.  1590,  Certificate  of  Residence.] 

NOTE.— California,  C.  C^  see.  1163;  C.  C.  P.,  sec.  412. 


No.  1599. — Sale  of  Business — Goodwill. 

Know  AlIv  Men,  that  we,  the  undersigned,  by  these  presents, 
sell  to  A.  B.  and  C.  D.  the  business  of  selling  hardivare  at  whole- 
sale or  retail,  heretofore  carried  on  by  us  in  the  city  and  county  of 
San  Francisco,  state  of  California,  under  the  firm  name  of  "Raise- 
price  and  Grahall,"  including  all  the  merchandise  described  in 
the  schedule  and  inventory  attached  hereto,  and  made  a  part 
hereof,  including  all  outstanding  debts  shown  by  the  books  of 
said  firm,  and  also  said  books  and  goodwill  of  said  business  and 
the  right  to  use  the  said  firm  name. 

NOTE.— California,  C.  C,  sec.  993. 


No.    1600. — Warehouse — Receipt   for   Merchandise   Thing    of 

Value. 

Port  Costa,  June  j,  igo6. 

Received  of  A.  B.  C,  one  thousand  sacks  of  Burhank  potatoes; 
averaging  /op  lbs.  per  sack,  in  good  order.  Each  sack  marked 
"X.  L.  O.  B." 

Three  thousand  sacks  of  dried  prunes,  averaging  60  lbs.  per 
sack,  in  good  order,  and  marked  "F.  N.  T."  on  each  sack.  Stor- 
age per  month  $10.00  per  thousand  sacks. 

NOTE. — There  are  two  classes  of  warehouse  receipts.  Under  the  first 
class  the  property  is  transferable  by  the  indorsement  of  the  party  to 
whose  order  such  receipt  was  issued.  The  indorsement  may  be  in  blank, 
or  to  the  order  of  another.  Under  the  second  class  the  receipt  is  trans- 
ferable by  indorsement  the  same  as  is  the  first  class,  unless  it  have 
printed  across  its  face,  in  red  ink,  in  bold,  distinct  letters,  the  word  "non- 
negotiable":  Cal.  C.  C,  sec.  1858b. 


INDEX. 


ACCOUNT.  No.  Page. 

Agent    of   Absent   Persons 1530  910 

Annual,  Accompanying  Report 1522  89(5 

Annual,  Accompanying  Report 1523  901 

Contest  of   1531  911 

Referee  of   1524  902 

Sale  of  Personal  Property    1527  90<> 

Sale— Real  Estate,  of   1526  904 

Six  Months   After  Letters  Issue    1529  909 

Thirty  Days  After  Notice  to  Creditors   152x  907 

Trustee  of   1532  911 

See  Return;  Report. 

ACKNOWLEDGMENT  AND  PROOF  OF  INSTRUMENTS, 

California:     Forms. — Attorney     in     Fact     by 4  4 

Acknowledgement — Chattel    Mortgage    of    421  302 

Attorney  in  Fact— County  Clerk,  by    12  2S 

Attorney  in  Fact,  J.  P.,  by    20  31 

Attorney  in  Fact,  County  Recorder,  by   Ifi  80 

Corporation    2  3 

General  Form   1  2 

General  Form— County  Clerk,  by   14  29 

General  Form— County  Clerk,  by   11  28 

General    Form — Justice    of    Peace,    by IS  30 

Handwriting — Proof  of  Maker  and  Witness   22  32 

Husband   and   Wife — Notary   by    7  27 

Husband  and  Wife — Justice  of  Peace,  by   17  30 

Husband  and  Wife — Proven  Notary,  by 8  27 

Prisoner,  in  Penitentiary  by    5  4 

Proven — Notary,  by    10  2S 

Proven — Residence  of  Parties  Unknown   23  33 

Proven — Subscribing  Witness  Dead   21  31 

Proven — Subscribing   Witness — Notary,   by 9  27 

Wife— Notary,   by    6  27 

Witness— County  Clerk,  by    13  29 

Witness,   Recorder   by    15  29 

Witness — Justice  of  Peace,  by   19  31 

Certificate,  Authentication   of    —  22,  2.3 

Deputy  may  Take   —  21 

Duty  of  Officer  Taking   —  22 

Justice  of  the  Peace,  Taking  —  23 

(9*37) 


968  INDEX. 

ACKNOWLEDGMENT  AND  PEOOF  OF  INSTEUMENTS — 

Continued.  No.     Page, 

Married  Woman 's    —         21 

Not  to  be  Taken — When   —         21 

Prisoner  in  State  Penitentiary,  by  —           4 

What   may   be   Acknowledged    —           2 

Who  may  Take  in  State   •. . .  —           8 

Who  may  Take  Acknowledgment;  Any  Offic-^r   ....  —           1 

Within    the     State —  17,  18 

Without  the  State  but  within  the  United  States —  18, 19 

Without    the    United    States — 19,  20 

PEOOF  OF  INSTEUMENTS: 

Action  to  Prove  by  Judgment    —  26 

Authority  of   Officer  Taking    —  26 

Certificate    Corrected     —  26 

Certificate  of  Proof    —  25 

Correcting     Certificate     of —  26 

Evidence — What  must  be  Proved   —  25 

Handwriting,  by    —  25 

Officers  who  may  Take  Acknowledgment  and  Proof 

of   Execution    —  1, 2 

Proof  of  Execution  of  Instruments — How  made. ...  —  24 

Subscribing  Witness,  by   .' —  24 

Alaska:  FORMS. — All  California  forms  are  applicable. 
Husband  and  wife,  if  taken  out  of  the  territory, 
add  the  words  "Freely  and  Voluntary."     See  note         —  3 

Arizona:  FORMS. — General  Form 24         33 

All  other  California  forms  applicable  if  the  words 
"he"  or  "she"  executed  the  same  for  the  pur- 
pose and  consideration  therein  expressed  are 
added.     See  note —         83 

PEOOF  OF  INSTRUMENTS:   Not  provided  for  except  by 
action   and  judgment. 

Colorado:    FORMS.— Chattel   Mortgage   to    

General    

Married    Woman — Homestead    Involved    

Subscribing  Witness   Known  to  Officer    

Subscribing  Witness — By   

Subscribing  Witness — Witness   by — Proved   to   be   Sub- 
scribing   Witness 29         55 

PEOOF  OF  INSTRUMENTS:   Not  provided  for  except  by 
action  and  judgment. 

Idaho:  FORMS.— Married  Woman   32         36 

All  other  California  forms  (except  "married  wo- 
man ' ')   are  applicable    —        36 

Montana:  FORMS. — All  California  forms  are  appli- 
cable. When  acknowledgment  or  proof  is  taken 
out  of  the  state  they  must  conform  to  the  laws 
of  Montana.     See    —         36 

Nevada:   FORMS.— General    33         37 

Justice  of  the  Peace  taking    —         23 

Married    Woman 35         37 


27 

35 

25 

34 

26 

34 

30 

36 

28 

35 

INDEX.  969 

ACKNOWIiEDGMENT  AND  PROOF  OF  INSTRUMENTS — 

Continued.  No.     Page. 

Nonresidents.     See —         37 

Proof  of  Instrument   34         37 

Subscribing  Witness   36         38 

Who  may  take  in  the  State   —  17,  18 

"Without  the  State  hut  in  the  United  States —  IS,  19 

Without  the   United   States    —  19,  20 

PEOOP  OF  INSTRUMENTS:   Not  provided  for,  except  by 
action  and  judjQ;ment. 

New  Mexico:  FORMS.— Attorney  in  Fact 38  39 

Association    39  39 

Corporation    39  39 

General   37  39 

Who  may  take  in  the  Territory —  18 

Without  the  Territory  but  in  the  United  States —  19 

Without  the  United  States  —  20 

See  note   , —  38 

PEOOP  OP  INSTRUMENTS:   Not  provided  for,  except  by 
action   and   judgment. 

North  Dakota:  FORMS. — All  California  forms  are  ap- 
plicable. When  taken  out  of  the  state  they  must 
conform  to  the  laws  of  North  Dakota.    See  note.  ...         —         39 

PROOF  OF  INSTRUMENTS:   Not  provided  for,  except  by 
action  and  judgment. 

Oregon:   FORMS.— Attorney  in   Fact    41  40 

Corporation 1,587  961 

Genera] — Justice  of  the  Peace,  by    40  39 

All  California  forms  except   "Attorney  in  Fact," 

and  "Corporations"  are  applicable.     See  note..  —  17 

PROOF  OF  INSTRUMENTS:   Not  provided  for,  except  by 
action   and  judgment. 

Sonth  Dakota:  FORMS. — All  California  forms  are  ap- 
plicable, except  they  must  contain  the  words,  "To 
be  the  person  described  in  and  who  executed  the 
within  instrument,"  must  be  inserted.  In  attorney 
in  fact  acknowledgment  the  words  "who  is  de- 
scribed in,  and  whose  name  is  subscribed"  must  be 
inserted.     See  note   —        40 

PROOF  OF  INSTRUMENTS:   Not  provided  for,  except  by 
action  and  judgment. 

Utah:  FORMS. — The  same  as  in  California  except 

Corporation   

General   

Proof   of  witness  by    

Witness  by    

When  taken  out  of  the  state  they  must  conform  to 

the  laws  of  Utah.     See  note    —         41 


43 

41 

42 

41 

45 

41 

44 

41 

970  INDEX. 

ACKNOWI.EDGMENT  AND  PROOF  OF  INSTRUMENTS— 

CJontinucd.  No.     Page. 
A  Justice   of   the  Peace  has  no   authority   to   take 
acknowledgment    of    an    instrument    to    be    re- 
corded     

Who  may  take  in  the  state.  A  judge  or  clerk  of  a 
court  having  a  seal,  a  notary  public,  a^  county 
clerk  or  county  recorded.  Revised  Statutes, 
sec.  1905. 

PROOF  OF  INSTRUMENTS:  Not  provided  for,  except  by 
action  and  judgment. 
Washington:  FORMS. — Corporation 47         42 


General 


46  42 


Homestead   Involved    49        43 

Certificate   Authenticated    —  22,  23 

Deputy  may  take    "1 

Justice  of  the  Peace,  by    —         23 

Married  Woman,  by   —     ^21 

Who  may  take  in  the  State   —  17,  19 

Without  the  State  but  in  the  United  States —  18,19 

Without  the  United  States    —  19,  20 

PROOF  OF  INSTRUMENTS:   Not  provided  for,  except  by 
action  and  judgment. 

Wyoming:  FORMS. — General 48         43 

Homestead    Involved    49         43 

Certificate — Authentication  of   —  22,  23 

Married   Woman,   by    —     ^21 

Who  may  take  in  the  State    —  17,  18 

Without  the  State  but  in  the  United  States —         19 

Without  the  United  States   —  19,  20 

PROOF  OF  INSTRUMENTS:   Not  provided  for,  except  by 
action  and  judgment. 

GENERAL  NOTE: 

Accident,  as  to   13 

Acknowledgment,  Defectively  Certified    —         10 

Actions — Proof   by    —         26 

Agent   of  Party  Taking    —         16 

Arrested — Witness  may  be — Contempt    —         10 

Attorney  at  Law,  a  Notary — Taking   —         16 

Authentication  of  Instruments    —         22 

Authentication    of   Certificate    —         22 

Authority  of   Officers   Taking    —         10 

Burden  of  Proof    —         ^  •> 

Certificate,  Authentication  of    —         22 

Certificate — Conclusive,  When    —  12,  13 

Certificate — Contents,  What  to  be   —         2-5 

Certificate,  Defective    —     6,  10 

Certificate,  Evidence  to  Impeach    .  . .  .■ —         15 

Certificate— "  Facts  "  Which  are  not  True— Stating  —  13,14 

Certificate — False —          6 

Certificate — Justices  of  the  Peace's,  to    —         23 

I                  Certificate  Corrected    —          26 

Certificate 's  Mistakes  Corrected   —         10 


INDEX.  971 

ACKNOWIiEDGMENT  AND  PROOF  OF  INSTRUMENTS— 

GKNIORAL    NOTK — Continued.  No.  Page. 

Certificate — Proof   of    I'Lxecution    of    —  17-26 

Conclusivenoss  of  Certificate —  12 

Cone.hi9:ve  as  to   Marrifil  Wonn.'n—  Vv'lun    —  1.3 

Contempt,   Notary,   of    —  10 

Contempt,    OfTicer,   of — Punishment    —  26 

Court,  Day  in,  All  People  to  have   —  9 

Coqwration  's  Secretary,  a  Notary,  by    —  16 

Correcting  Certificate    —  26 

* '  Credible  Witness '  '—Not  Credible  Wiien    —  7 

Day  in    Court,   All   Peoj)le   to   have    —  9 

Damages — Certificate,  False    —  6 

Damages — Negligence  for   —  6 

Death   of  Party    —  8 

Defective    Certificates    —  6,  10 

Deputies,   by    —  ,8,  IS 

Departments  of   Government    —  8,    'J 

Disqualification  of  Officer  Taking  a  S'lfegnard    ....  —  5 

Due  Process  of  Law    —  S,    9 

Duty — Showing  OfTicer  did   not   do   His    —  14,  15 

Duress,  as  to  Married  Woman   —  14 

Encumbrancers,    as    to    —  1,3,  14 

Established  Instrument    —  8 

Estoppel,   as    —  .5 

Evidence   to  Impeach   Certificate    —  I.t 

Excuse  for  Negligence   —  7 

Execution,  Proof  of    —  24 

False    Certificates    —  6 

Fraud — As    to    Married    Woman    —  14 

Fraud — As  to  Instrument —  13 

Functions — Judicial    —  9 

Handwriting  of  Maker    —  24 

Impeachment  of  Certificate — Evidence  to    —  15 

Impeachment    by   Married   Women    —  13,14 

Incredible  Witness,  as  to    —  7 

Innocent    Purchasers,    as   to    12,  13,  14 

Intention  to  Acknowledge  and  Act  Must  Co-operate  —  14 

Instruments,  that  may  be    —  1,  2 

Judgment  Establishing  Execution  of  Instrument   . .  —  26 

Judgment   Proving  Instrument    —  8 

Judicial  Act — Taking  is  not    —  5 

Judicial  Act  Under  Statutes    —  12 

Judicial  and  Ministerial  Officers   —  9 

Judicial    Functions   ' —  0 

Judicial  Notice  of  Records   —  8 

Judicial  Officers — Not  Liable  for  Mistakes    9,  10,  11 

Judicial    Officers    and    ^Ministerial    Duties    —  10,11 

".ludicially " — Notary  Taking  does  not  .\ct —  10 

Justice  of  the  Peace  Taking — Liable  for  His  Mis- 
takes     —  23 

Land,   Right   to   Use    —  8,  9 

Law,    Process    of    —  8,  9 

Legal   Questions   Involved    —  8 

Legislative  Dojiartments  of  Government —  11 

Liability    of    Officer— When     _  10.  n 

Lost    Instrument    —  8 

Married    Woman  's    11,  12,  13,  21 


978  INDEX, 

ACKNOWliEDGMENT  AND  PROOF  OF  rNSTHTJMENTS— 

GENEEAL   NOTE — C^ontinued.                                               No.  Page. 

Married  "Woman's,  Impeachment  of    —  4 

Married  Women — Presumptions,  as  to —  6 

Ministerial    Act — Taking  is —  10 

Ministerial  and  Judicial  Officers — Taking —  9 

Ministerial    Officer,    Notary    is —  10 

Ministerial  Officer  Liable  for  Mistakes   —  10,11 

Ministerial   Officers   Taking    —  8 

Mistake,    as    to    —  13 

Mistake  in   Ceri;ifieate   Corrected    —  10 

Mistakes — Judicial  Officers  not  Liable  for    —  10,  11 

Mistakes,   Ministerial   Officers   Liable   for    —  10, 11 

Mistakes,    Responsibility    for — Who     —  10, 11 

Names  in — Presumptions,  as  to   —  5 

Negligence    of    Officer    Taking    —  7 

Negligence,  Damages  for    —  6 

Not  to  be  Taken,  When   —  21 

Notary,   Attorney  for   All   Parties   may  Take    ....  —  16 

Notary  Attorney  at  Law  not  to  Take  Client's,  When  —  16 

Notary — Smart   One   Learns  Something    —  14 

Notary,  Member  of  Chaiitable  Association  Taking  —  16 

Notary — Ministerial  Officer  is   —  10 

Notary    Quasi   Judicial,    as    a —  9 

Notary 's  Risks  —  7 

Notary,   Secretary   of   Corporation   Making   Instru- 
ment   Void    —  16 

Notary — Witness    cannot    be —  10 

Notice,   Judicial,    of    Records    —  8 

Oath,    to     Administer,    Officer    is —  26 

Oath  of  Witness  to    —  6 

Officer — Contempt  of  his  Process   —  26 

Officer's  District,  not  Taken  in    —  13 

Off.cer,   Duty    of    —  22 

Officer — Interested   in   Instrument    —  15 

Officer's    Interest    not    Appearing —  15 

Officer — Party  to  Instrument   —  15 

Officer — Qualifications  of  not  Statutory   —  22 

Officer — Relationship   to   Party    —  15 

Officer — Witness  not  to  be    —  15 

Officer— Wife 's,   cannot   Take    —  15 

Officer,  Witness,  may  Commit   —  10 

Officer,  Witness,  mav  Subpoena —  10 

Officers— Who  may  Take  1,  2,  5,  17-19 

Officers — What    Class    may   Take    —  1 

Part  of  Instrument  is    —  12 

Powers — Officers    Taking — Of    —  10 

Presumptions,   as   to    —  5,  6 

Prima  Facie   True    —  5,  7 

Private  Writing  of   —  7 

Process   of   Law    —  8,  9 

Proof— Burden   of    —  10,  15 

Property,    Right   to   Possess    —  8,  9 

Purchasers,   Innocent    —  13,  14 

Qualifications   of   Officer    —  22 

"Quasi  Judicially"  to  Act  —  9 

Record  of  Proved  Instrument   —  8 

Relationship   of   Officer    —  15 

Representatives   of   Corporations   Taking —  16 


IXDEX.  J>73 

ACKNOWLEDGMENT  AND  PROOF  OF  INSTKTJMENTS— 

GENERAL  NOTH— Continuoil.  No.  Page. 

Responsibility  for  Mistake   —  10 

Right    to    Po9sc83    Property    —  S,  9 

State.    Who    niav    Take    in" —  17,  13 

States,  United,  Who  may  Take  in   —  18.  19 

States.   United.   Who   mny  Take   out   of    —10.20 

Subscribing  Witness — By    —  24 

United  States,  Who  may  Take  in    —  18,  19 

United  States,  Who  may  Take  out  of    —  19,  20 

Used  Witliinit  Furth  r  Proof    —  5 

Venue   in    —  R 

Void.   When    —  5,  6 

Warrant    for    Arrest    of    Wi'm'sg —  10 

Who  may  Take   1,  2,  5,  17-19 

Wife 's,  Taken  bv  Husband   —  I'j 

Wills    not  to  be  ' —  7 

Witness  not  Appearing  Punished    —  10 

Witness  Arrested  may  be   —  10 

Witness  Committed  may  be    —  10 

Witness — Credible    —  7 

Witness — Officer  as — Can  He  Impeach   His   Certifi- 
cate      —  15 

Witness'   Reputation    —  7 

Witness'   Risk    —  7 

Witness,  Subscribing  by   —  24 

Witness  Surprised — May  be   —  7 

ADMINISTRATOR.     In    this    book    synonymous    with    Ex- 
ecutor.    See  Affidavit;   Notice;  Order;  Petition. 

Administrator,  Mortgage  by    429  312 

Administrator,    Patent    by     437  315 

Administrator,  Petition  that  He  Give  New  Bonds   ....  1468  842 

Administrator,  Petition  that  He  Give  Further  Security  1469  843 

Administrator,  Petition  that  He  Give   New  Bond    ....  1470  844 

Admin. strator,    Special,    Petition    to    Appoint    1473  845 

Administrator.  Petition  of  Surety  to  be  Released  from 

Bond    1471  844 

Administrator,  Petition  from  Bond    1472  845 

Administrator,  Petition    for  Patent  by    436  315 

Administrator's    Oath    of    Office 603  417 

ADMINISTRATOR,    PUBLIC,    remits    his    fees 286  229 

AFFIDAVIT.     See  Notice;  Order;  Petition;   Writ. 

Account    to     559  389 

Administrator  of.  Inventory  and  Appraisement    599  416 

Appraisers   of — To   Bill    for   Services    601  416 

Appraisers    of — Inventory    and    Appraisement    600  416 

Arrest,    Order   of,   for    560  390 

Arrest,    Order   of — Fraudulent    Debtor,    for    561  390 

Arrest,   Order   of — Removal   of   Property,   for    562  391 

Attachment  for 563  392 

Attachment   V8.    Nonresident,    for    564  393 


974 


INDEX. 


ATTTDAVIT — ContiBued. 

Attachment   to   Procure   Order,   Examination   for 

Anctioneer  of,  on  Eeturn  of  Sale  of  Personal  Estate   . . 
Auctioneer  of,  on  Return  of  Sale  of  Personal  Estate. . . . 

Award — Motion  to   Correct  on    

Award — Notice    of.    Has    Been    Served    

Bill   for   Services,    Appraisers   of    

Bond,  Executor 's.  Insufficient   

Claim,  Creditor 's   

Claim  and  Delivery  of  Personal  Property,   on    

Clerk,  Willful   Neglect  by    

Contempt,  Abuse  of  Process  of  Court    

Contempt,   Application,   Subsequent   for   Order   Refused 

Contempt,   Attorney,  Willful   Neglect   by    

Contempt,    Attorney    Without    Authority     

Contempt  Committed    

Contempt  Committed    

Contempt,  Copy,  Refusal  of  Permission  to  Take   

Court's  Mandate,   Disobedience   to    

Court 's  Order,  Refusal  to   Obey    

Court    Proceedings,    Unlawful    Interference 


Contempt 
Contempt 
Contempt 

with .  . 
Contempt 
Contempt 
Contempt 

ings. .. 
Contempt 
Contempt 
Contempt 
Contempt 
Contempt 
Contempt 
Contempt 
Contempt 
Contempt 
Contempt 
Contempt 


Disobedience  to  Court 's  Mandate    

Ejectment,  Re-entry  After   

Interference,  Unlawful,  with  Court  Proceed- 


Juror   Improperly   Conversing 

Juror  Unlawfully  Conversing  

Order   Refused,   Subsequent    Application   for 

Re-entry   into    Property   After    Ejectment.. 

Referee    Neglects   Testimony    to    Take    .... 

Refusal  to  Obey  Court 's  Order 

Rescuing  Person  in  Custody  of  Officer 

Subpoena,   Willful   Neglect   to   Serve    

Willful   Neglect   by  Clerk    

Willful  Neglect  to  Serve  Subpoena    

Witness,   Unlawfully  Detaining    

Continuance  for   

Corporation  Partnership — Creditor's  Claim   

Creditor 's   Claim    

Creditor 's  Claim — Corporation,   Partnership    

Creditor   had   no   Notice    

Creditors,    Publication    of   Notice    to    

Costs — Memorandum    to     

Deposition,   Commission   to   Examine   Witness    

Deposition,  Time   Shortened  for   Notice   to   Take 

Defendant  Concealed  to  Avoid  Service 


No. 

Page. 

589 

409 

608 

420 

609 

421 

73 

73 

72 

72 

601 

416 

59.3 

412 

587 

408 

565 

393 

579 

406 

575 

400 

576 

401 

581 

404 

574 

399 

566 

394 

584 

406 

57.1 

.399 

578 

402 

582 

404 

570 

397 

578 

402 

577 

401 

570 

397 

567 

395 

568 

396 

576 

401 

577 

401 

572 

398 

582 

404 

571 

397 

580 

403 

579 

403 

580 

403 

569 

396 

585 

407 

586 

407 

587 

408 

586 

407 

588 

409 

620 

426 

1006 

599 

595 

413 

592 

411 

1588 

963 

INDEX.  975 

APFTDAVTT — fkmtinTied.  No.  Page. 

Examination   of   Judfjmcnt   Debtor,    for    591  410 

Execntor  or  Administrator  of 603  417 

Executor's    Bond    Insufficient,    is    593  412 

Executors,   Removal   of    628  432 

General     596  414 

Guardian,   Appointment  of — Infant  ImperiUd    597  414 

Guardian  Refuses  to  Support  "Ward   598  415 

Improvementa — Five  Hundred  Dollars  of.  Mining   ....  401  289 

Infant    Imperiled — Guardian    Appointed    597  414 

Judgment  Debtor,  Examination  of,  for    591  410 

Judgment  Debtor,  Order  for  Examination  cf  Debtor  of  590  410 

Judgment — Motion  to  Vacate  on   73  73 

MaLl,  Service  by,  of   611  422 

Mail   by.   Service   of   Summons,   of    619  426 

Memorandum   of   Costs   to    1006  599 

Mismanagement,  Removal  of  Executors,  for    628  432 

Mortgage — Chattel,    Parties    to     420  302 

Notice,  Creditor  had  no    588  409 

Notice  to   Creditors.   Publication   of    620  426 

Notice  of  Petition  for  Probate  of  Will,  Serviee  of   ...  602  417 

Notice  of   Sale  of   Real   Estate,   Publication   of    604  418 

Notice  of  Sale  of  Personal  Estate,  Publication  of 607  420 

Order  of  Arrest,  for   560  390 

Order   of   Arrest,   for — Fraudulent   Debtor    561  390 

Order  of  Arrest,  for — Removal  of  Property   562  391 

Order,   Attachment   to   Procure   Examination    589  409 

Order  Regulating  Time  for  Examination  of  Witness..  594  412 

Party,    Substitution    of    616  424 

Party,    of — Testimony   of   Witness   Necessary'    583  405 

Payment,  Tender  of — Demand  to  Repossess    627  431 

Posting  Notice  of   621  427 

Posting    Notice    of    622  428 

Posting  Notice  of  Settlement   of   Account    623  428 

Posting  Notice — General    621  427 

Principal,  Clerk,  of — Publication  of  Notice  of   Sale   of 

Personal  Estate    607  420 

Probate  of  Will,  Service  of  Notice  of  Petition  for 602  417 

Publication  of  Notice  to   Creditors,   of    620  426 

Publication  of  Notice,  of — Sale  of  Real  Estate   604  418 

Publication    of    Summons,    of    624  428 

Publication   of   Summons,   for    626  430 

Removal  of  Executors   628  432 

Return  of  Sale  of  Personal  Estate    608  420 

Return  of  Sale  of  Personal  Estate,   of    609  421 

Sak   of  Real   Estate,   of    605  418 


976  INDEX, 

ATFrDAVTT — ContiTmed.  No.  Page. 

Sale  of  Real   Estate,   of    606  419 

Sale  of  Real  Estate.  Posting  Notice,  of   610  421 

Service   by  Mail   of 611  422 

Service  of  Notice  of    612  423 

Service   of   Notice,   of— Clerk,   etc 613  423 

Service  of  Notice— Petition,  Probate  of  Will,  for 602  417 

Service  of — Office  Table    614  423 

Service  of  Sammons  by  Mail,   of    619  426 

Settlement  of  Account — Posting  Notice,  of    623  4.28 

Sole    Trader    615  424 

Substitution   of  Party    616  424 

Summons,    Publication    of.    for    626  430 

Summons,    Publication,    of     624  428 

Summons,   Service,   of    625  429 

Summons,  Service  of,  by  Mail    619  426 

Sureties    of    617  425 

Sureties  Annexed  to  Officer 's  Bond,  of   618  425 

Tender  of  Payment  of — Demand  to  be  Restored  to  Pos- 
session    627  431 

Ward    not    Properly    Supported     598  415 

Witness,    Commission    to    Examine    595  413 

"Witness   Necessary,   to   Take   Testimony    583  405 

Witness,  Order  Regulating  Time  for  Examination,  of..  594  412 

GENERAL  NOTE: 

Account — Executor   or   Administrator    to —  389 

Administrator — Account    to    —  389 

Affiant  may  be  Cited  Before  the  Court  to  Explain  —  388 

Attachment  for,  What  to   Show   —  392 

Attorney,  if  a  Notary,  may  Take  and  Use  in  Action  —  388 
Certiaeate  to  Signature  of  Officer  Taken  Outside  of 

State   —  387 

Claim  and  Delivery  in,  What  to  Show   —  393 

Clerk  may  Take   —  387 

Contempt    Committed,    Disobedience    of    Notary's 

Subpoena    —  394 

Contempt   Committed,   What   to   Show    —  3^ 

Copy  of,  Certified  by  Judge  or  Clerk  of  Court  hav- 
ing It  in  Custody,  Prima  Paeie  Evidence   —  387 

Deposition   to   Take    —  413 

Deputy  Clerk  may  Take  in  His  Own  Name    —  388 

Evidence  of  Publication,   of    —  427 

Executor,    Account    to —  389 

Executor   or    Administrator,   by — Attached    to    His 

Letters    —  417 

Executor 's    Bond    is    Insuffic  ient —  412 

Foreign  Country,  Who  may  Take  in —  387 

Guardian    Refuses   to    Support   Ward    —  415 

Hearsay  in    —  388 

In  Foreign  Language,  Excluded   —  388 

Information  and  Belief,  on   —  388 


INDEX  977 

AFFIDAVIT— OEISTRR A  L  NOTE — Continned.  No.  Pajw». 

Judpfe  may  Take    —  ^^7 

Juryman 's    —  ^^^ 

Justice   of   Peace   may   Take    —  387 

Minor,    Rescued,    to    be     —  415 

Notary    Public    may    Take    —  387 

Notice   Served   by   Publication — Proof   of    —  417 

Oath    to,    may     be    Administered     by    any     Person 

having  General  Authority  to    —  388 

Oath    (Affidavit)    of  Permanent   Administrator   At- 
tached  to  His  Letters    —  485 

Oath     (Affidavit)     of     Special     Administrator     In- 
dorsed on   His  Letters    —  485 

Proof  of  Service  of  N)tice  by  F*ablieation,  by —  417 

Publication,    of,    Genor.illy    —  427 

Replevin   in — What   to   Show    —  39?. 

Repnprnancy  in — "Videlicit"  to    —  388 

Return    of    Service,    to     —  429 

Service    by    Mail,    of     —  422 

Service  of  Summons,  of    —  429 

Signed — Need    not    be    —  388 

Subpoena    to    Obtain     —  406 

Summons,    of    Service    to     —  429 

"Sworn  to" — Meaning  of    —  388 

"Under     Oath  "—Meaning     of —  388 

TTnited  States  in.  Who  may  Take    —  387 

Venue — Absence  of  has  been  Held  to  be  Fatal —  388 

Venue  in — Meaning  of   —  388 

"Videlieit" — If    Repugnant     to     Preceding     Mat- 
ter— Rejected    —  388 

AGREEMENT.     See  Contract. 

ALTERATION  OF  WRITTEN  INSTRUMENTS 1586  955 

AinMALS. 

Notice   of  Lien   on    387  275 

Propagating,   Notice    of   Lien    388  275 

ANSWER — PLEADINGS.     See  Demurrer. 

Acceptance   Unauthorized    629  4.33 

Accommodation   Acceptance    630  433 

Account    631  433 

Accounting    and    Payment     632  434 

Accounting  and   Payment   633  43-t 

Accord  and  Satisfaction    634  434 

Action,   Another   Pending    637  435 

Action.    Application    to   Join    in    638  435 

Agreement  to  Take   Note    635  434 

Alteration   of   Contract    658  441 

Alteration  of  Instrument    636  435 

Another  Action  Pending    637  435 

Application,     Guardi:in,     Appointment     of,     for 737  459 

Application  to  Join  in   Action    638  435 

Arbitration    and    Award    639  436  - 

New  Forms — 62 


978  INDEX. 

ANSWEBr— PI.EADINGS— Contimied.  No,  Page. 

Arrest,    Jxistifieation    of 640  436 

Arrest,  Criminal  Process   641  436 

Arrest,  Criminal  Process   642  437 

Assignment  not   Eqnitable    643  437 

Assignment  to  Third  Person    644  437 

Award,    Invalidity    of 744  461 

Bankruptcy,  of  645  438 

Bankruptcy— By  Deed   646  438 

Bill,  Payment  by   779  470 

Bona  Fide  Purchaser 647  438 

Breach,   Warranty,   of    811  480 

Breach,  Warranty,  of   812  481 

Breach,  Warranty,  of   813  481 

Breach,  Warranty,  of   814  481 

Capacity,  Want  of 648  439 

Capacity,  Want  of 649  439 

Capacity,  Want  of    650  439 

Capacity,  Want  of 651  439 

Claim  and  Delivery 652  440 

Claim,  Compromise  of 653  440 

Collision,     Highway,     on 739  459 

Compromise,    Claim    of    653  440 

Consideration,   Failure,   of    654  440 

Consideration,  Want  of 655  440 

Consideration,  Want  of   656  441 

Consideration,  Want  of   657  441 

Contract,  Alteration  of    658  441 

Contract,   Explaining    659  441 

Contract,  Eeseission  of    660  442 

Contract,  Special   6^1  *^2 

Contract,  not  in  Writing   662  442 

Controverting   Title    663  442 

Conveyance,  not  Fraudulent   734  458 

Counterclaim   664  442 

Credit,  no  Negligence  in   Giving    665  443 

Credit,  Unexpired    666  443 

Damage,   Plaintiff's   Fault,   by    728  457 

Death   of   Defendant    667  443 

Deceit   668  443 

Defendant,  Death  of 667  443 

Defendant,  Infancy  of   741  460 

Defendant,  Marriage   of    760  466 

Defendant,  Marriage  of  761  466 

Defendant,  Partnership  of 776  469 


1NT>EX.  970 

ANSWUR— PLEADINGS— rontinnod.  No.  Page. 

Defendant,  Part  Owner   669  443 

Defendant,  Performance  by   785  471 

Defense,  Dwelling  of 725  455 

Demurrer  and   Answer   670  444 

Denial,  Acceptance  of    671  444 

Denial,   Agreement    of    672  444 

Denial,  Articles  by 673  444 

Denial,  Assignee  by   674  444 

Denial,  Bailment  of    675  445 

Denial,  Breach  of  Contract    676  445 

Denial,  Breach  of  Promise    677  445 

Denial,    Breaking    of    678  445 

Denial,  Capacity,   Oflicial   of    705  451 

Denial,    Charge,   Falsity   of    684  447 

Denial,  Common  Carrier 679  446 

Denial,  Conditional  Delivery  of   681  446 

Denial,  Conditions  Precedent  of 680  446 

Denial,  Contract,  Breach  of 676  445 

Denial,  Demand  of    682  446 

Denial,  Dog,  Vicious,  Possession  of   711  452 

Denial,  Employment  of    683  446 

Denial,  Falsity  of  Charge   684  447 

Denial,  Fraud  of   685  447 

Denial,  Fraud  of    686  447 

Denial,  General 6S7  447 

Denial,    General     088  447 

Denial,  General 689  448 

Denial,   Guaranty   of    690  448 

Denial,  Information  and  Belief  on   691  448 

Denial,  Interest    of 692  448 

Denial,  Interest,     Plaintiif's,     of 693  448 

Denial,    Knowledge    of 694  449 

Denial,  Knowledge    of 695  449 

Denial,  Knowledge    of— To    Form    Belief 696  449 

Denial,  Loss    of 697  449 

Denial,  Loss    of 698  450 

Denial,  Mortgage    of 699  450 

Denial,  Negligence    in    Sale,    of 700  450 

Denial,  Notice   of    701  450 

Denial,   Notice  of — Dishonor    702  451 

Denial,    Nuisance,    of     703  451 

Denial,  Offer  to  Perform   704  451 

Denial,  OflScial  Capacity,  of   705  451 

Denial,  Partnership,  of   706  451 


980  INDEX. 

ANSWEE^PLEADINGS— Con  tinned.  No.     Page. 

Denial,  Part  Performance   701  451 

Denial,  Part  and  Tender  as  to   708  452 

Denial,  Performance    709  452 

Denial,  Performance,  Plaintiff 's,  of 710  452 

Denial,  Possession  of  Vicious  Dog 711  452 

Denial.   Presentment,   of    712  453 

Denial,  Probable  Canse,  Want  of   713  453 

Denial,  Promise,  Breach  of  G77  445 

Denial,  Promise  of 714  453 

Denial,  Promise  of    715  453 

Denial.  Promise  of    716  453 

Denial,  Representations    of 717  453 

Denial,   Sale   of    71 S  454 

Denial,  Sale,  Negligence  in,  of 700  450 

Denial.  Specific 719  454 

Denial,  Stock,  Subscription,  of   720  454 

Denial,  Trust  of 721  454 

Denial,  Trust  of  722  454 

Denial,  Waste  of   723  455 

Duress    724  455 

Dwelling,  Defense  of 725  455 

Entry,    Resistance    to 792  473 

Eviction   726  455 

Execution,  Justification  Under 727  456 

Fault,  Damage   by  Plaintiff 's 728  457 

Pence,   Justification   of   Rebuilding    729  457 

Forcible  Entry  and  Detainer   730  457 

Former  Judgment    731  458 

Fraud    732  458 

Fraud,  Judgment,  in   Obtaining    745  461 

Fraud,  Note    Procured     by 733  458 

Frauds,  Statute   of    5^77  476 

Frauds,  Statute   of    798  477 

Frauds,   Statute  of    '-"99  477 

Frauds,  Statute   of 800  477 

Fraudulent,  Conveyance  was  not 734  458 

Goods   Furnished   Wife    735  459 

Goods,   Lien  upon    758  465 

Goods'  not  Received    736  459 

Guardian,  Application  for  Appointment  of   737  459 

Guaranty,    Departuie    from    738  459 

Highway.  Collision  on    739  459 

Illegal    Interest 740  460 

Indorsement,    Payment    before 780  470 

Infancy,  Defendant  of 741  460 


INDEX.  981 

ANSWER— PUGADINGS— Continued.  No.     Page. 

lufuncy,   I'laintitf   of    742  460 

Installment,  as  to    "43  460 

Instrument,   Alteration   of    6.36  435 

Interest,  Illegal    740  460 

Invalidity  of  A  ward   744  461 

Invalidity  of  Judgment   746  461 

Judgment,  Former   7.31  457 

Judgment,  Fraud   in  Obtaining    74.5  461 

Judgment,  Invalidity   of    746  461 

Judgment,   Setting  up  a    747  462 

Jurisdiction  of  Person,  Want  of   748  462 

Jurisdiction,  by  Foreign  Corporation,  Want  of   749  462 

Jurisdiction  of  Subject,  Want  of   750  462 

Justification,  Arrest  of 640  436 

Justification,  Execution,  under    727  456 

Justific.ition,  Captain,  by    751  463 

Justification,  Publication  of   752  463 

Justification,   Publication   of    75o  463 

Justification,   Publication   of    754  463 

Justification,  Publication  of  755  464 

Justification,   Publication   of.   Privileged    756  464 

Justification,    Publication    of    Privileged 757  465 

Justification,    Rebuilding    Fence,    of    729  457 

Justification,  Search-warrant,  Under   793  473 

Justification,  Sheriff,  by    795  474 

Justification,  Trespass,  of   806  478 

Justification,  Trespass  of 807  479 

Libel,  Mitigation  of   766  467 

Lien,  Goods  upon  758  465 

Lien,  Services  for   759  465 

Limitations,  Statute  of   801  477 

Limitations,  Statute  cf   802  477 

Marriage,  Defendant,  of 760  466 

Marriage,  Defendant,  of   761  466 

Marriage,  Plaintiff,  of   762  466 

Misjoinder 763  466 

Misnomer   764  466 

Misrepresentations,  Policy  Obtained  by   787  472 

Mistake    765  467 

Mitigation,  Libel  of   766  467 

Mortgage,  not   Assigned    767  467 

Negligence,  Plaintiff 's   768  4C7 

NegUgenc«   769  468 

Nonjoinder,  ABsignee  of   7T0  4<S8 


"82  INDEX. 

ANSWER— PLEADrfrGS—Continuefl.  No.  Page. 

Non.io'nclor 771  468 

NoTi.ioindor 772  468 

Nonioinrler 773  468 

Nonjoinder 774  469 

Note.  Payment  bv   781  470 

Overdrawing,    Plaintiff's    Assent 775  469 

Partnership,  Defendant  of  776  469 

Partnership,  Plaintiff  of    777  469 

Payment 77S  470 

Payment  by  Bill    779  470 

Payment  before  Indorsement   780  470 

Payment   by    Note    781  470 

Payment  in  Services   782  471 

Payment,   and   Tender    78.3  471 

Peace,  Acts  Done  to  Preserve 784  471 

Performance   by  Defend:^nt    785  471 

Performance — non  Excuse  for   786  472 

Plair-tiflf,  Infancy  of 742  460 

Plaintiff,  Marriage  of 762  466 

Plaintiff,  Negligence  of   768  467 

Plaintiff,  Partnership  of 777  469 

Policy  Obtained  by  Misrepresentations    787  472 

Policy.  Transferred  without  Consent   788  472 

Presentment — non    Excuse     for 789  472 

Publication,   Justification   of    752  463 

Publication,   Justification   of    753  463 

Publication,  Justification  of   754  463 

Publication,   Justification   of    755  464 

Publication,  of  Privileged,  Justification   756  464 

Publication,  of  Privileged,  Justification   757  465 

Purchaser,  Bona  Fide   647  438 

Redemption,  Equity  of  not  Assigned   790  473 

Release   791  473 

Rescission  of  Contract   660  442 

Resistance  to  Entry   792  473 

Search-warrant,  Justification  under    793  473 

Self-defense    794  474 

Services,  Lien  for   759  465 

Services,   Payment   in    782  671 

Sheriff,    Justification    by 795  474 

Slander  of.  Title 796  476 

Special  Contract 661  442 

Statute  of  Frauds   7»9  477 

Statute  of  Frauds    798  477 

Statute    of    Frauds 799  476 


48  L 
481 


INDEX,  983 

ANSWER — PLEADINGS — Oontinuod.  No.  Page. 

Statute   of   Pruuds    800  477 

Statute     of    Limitations 8ul  477 

Statute   of   Limitations    802  477 

Suit,    Tender    Before    804  478 

Surrender 803  478 

Tender   Before   Suit    804  478 

Term,    not    Expired     805  478 

Third   Person,    Assignment    to    644  437 

Title,    Controverting     663  442 

Title,    Slander    of    796  476 

Trespass,  Justifying    806  478 

Trespass,  Justifying   807  479 

Ultra  Vires    808  479 

Unseaworthiness    809  480 

Usury    810  480 

Warranty,  Breach  of   811  480 

Warranty,   Breach   of,  by  Plaintiff    812  481 

Warranty,    Breach    of    813 

Warranty,    Breach    of,    as    to    Quality 814 

Vit',..    Goods    Fii'-nishcd     735  459 

Work,    not    Finished     815  481 

APPRAISERS.     See   Aflidavit;   Homestead;   Inventory   and 
Appraisement;    Order;   Notice;   Petition. 

AfiSdavit  to  Inventory   600  416 

Affidavit  to  Bill  for  Services   601  416 

Appointed — Homestead,    to    Appraise 272  22.3 

Appointed — Homestead,    to    Appraise    274  224 

Compensation    of     281  227 

Oath     of 375  224 

Report   of    276  224 

ARBITRATION  AND  AWARD.     See  Affidavit;  Notice;  Or- 
der; Petition. 

Action,    First    Entry    in    Register    57  52 

Affidavit,    Arbitrators    not    Made    Award    53  50 

Affidavit  on  Motion  to  Modify  Award   79  73 

Affidavit  of  Arbitrators  on  Motion  to  Show  Cause 54  51 

Affidavit — Motion   to  Vacate  Judgment    73  68 

Affidavit — Notice  of  Award  was  Served    72  67 

Affidavit — Notice    Served    of    Award    Filed 72  67 

Agreement    to    Arbitrate     50  46 

Agreement   to   Arbitrate    51  50 

Agreement   to   Arbitrate    52  50 

Appointment — Notice  to  Arbitrators  of   58  52 


984  INDEX. 

AEEirHATION  AND  AWARD— Continued.  No.  Page. 

Arbitration  Bond   • 62  53 

Arbitrators — AfBdavit  that  Award  is  not  Made 53  50 

Arbitrator 's   Oath    60  53 

Arbitrators — Notice    of    Their    Appointment 58  52 

Award 68  57 

Award    69  58 

Aw.'ird — Arbitrators  Ordered  to  Make 53  51 

Award  Amended 76  72 

Award — Entry  of  Stayed    75  72 

Award — Notice — Motion  to  Correct   74  72 

Bond    of    Arbitration    62  53 

Bond    of    Arbitration,    Conditions    of     63  54 

Complaint  in   Action  for  Damages  Because  of   Revoca- 
tion of  Submission    67  56 

Correct  Award — Affidavit  on  Motion   to    79  73 

County  Clerk's  First  Entry  in  Action   57  52 

County  Clerk's  Second  Entry  in  Action   70  67 

First  Entry  in  Register  of  Action 57  52 

Hearing— Notice   of    59  53 

Judgment — Staying  Entry  of  Award    75  72 

Judgment — Stayed  to   Show  Cause  Why  not    77  72 

Modification  of  Award — Affidavit  on  Motion  for 79  73 

Motion — Notice  of,   to   Correct  Award    74  72 

Notice  to  Arbitrators   58  52 

Notice  of  Filing  Award    71  67 

Notice  of   Motion   to   Correct   Award 74  72 

Notice  of  Hearing 59  53 

Oath  of  Witness    61  53 

Oath  of  Arbitrator   60  53 

Order  Vacating  Award    78  73 

Order  to   Show  Cause   Why  Award   Should   not  be   En- 
tered      77  72 

Order  to  Show  Cause — Affidavit  on   54  51 

Order  Staying  Entry  of  Judgment   75  72 

Order — Arbitrators  to  Join  in  Attempting  to  Award...  55  51 

Order  Amending  Award 76  72 

Order — Rehearing  Granted 78  73 

Partners — Agreement   by    50  46 

Release   of   Award    501  344 

Register  of  Action — First  Entry  in   57  52 

Revocation  by  All  Parties 64  55 

Revocation  by  One  Party    65  56 

Revocation   of   Submission    66  55 

Submission — Clause  in  Contract   51  50 

Submission — Clause  in  Contract    52  50 


IISTOEX.  985 

AEBITEATIOTT    AND    AWAED— Continncd.  No.     Page. 

Vaeated  Award — Order  to  Show  Cause  Why  not 77  72 

Vacating    Award — Order    Made    78  73 

Witness,  Oath  of   61  53 

eENERAL  NOTE: 

Action,  Bar  to,  Award  is,  WTion    —  64 

Action  for  Tompcnsation  by  Arbitrator   —  66 

Action  on  Award —  57,  64 

Actual   Fraud    —  69 

Agreement  Failing,   Suit  may   be   Brought —  67 

Agreement    not    Reached,    Court    will    not    Appoint 

Other  Arbitrators    —  67 

Alternate  Award    —  60 

Alteration  of  Award —  63 

Amending    Awards     70. 71,  72 

Appeal    from    Award 47,  73,  74 

Arbitration  Bonds   —  54 

Arbitration  Compulsory —  44 

Application    of    Statute    —  44 

Arbitration — Conunon  Law,  Right  to   — ■  44 

Arbitration — Parol  Agreement —  44 

Arbitration — Stipulation  to —  47 

Arbitration,  Submission  Set  Aside    f  Tnvnlid —  67- 

Arbitration,  Costs  of — A  Lawyer's  Opinion   —  65 

Arbitrator,   Bias   of    —  70 

Arbitrator,  Death   of    —  67 

Arbitrator,  Examination  of —  71 

Arbitrator,   Interest  of    —  70 

Arbitrator — Impeachment  of  Award    —  70 

Arbitrator's   Compensation — Costs    —  66 

Arbitrator 's  Powers    —  46 

Arbitrator,   Prejudice   of    —  70 

Arbitrator's  Relationship  to  Party    —  71 

Arbitrators,  Substitution  of   —  70 

Attorney,   Notice   of    Award   Served   on    —  59 

Authority,   Delegation   of    —  69 

Award — Actions  on    • —  64,  57 

Award  Against  Law —  71 

Awards  and   ('ourts  of  Equity    —  71 

Award  as  Estopped    —  63 

Award,  Beyond  the  Issue    —  63 

Award — Cannot  be  Performed,  What    —  69 

Award,   Certainty   of    —  59 

Award,   Alteration    of    —  63 

Award  Complete,  When    —  59 

Award,   Conclusiveness    of    —  63 

Award  Corrected  by  Arbitrator  and  by  Jury —  71 

Award — Costs  not  Paid — No  Award   —  66 

Award  of  Costs  and  Right  to  Costs  Different  Ques- 
tions      —  65 

Awards — Deposit   to   Abide    —  55 

Award,  Evidence  Outside  of   —  69,  70 

Award,    Final    When    —  60 

Award,    Filing — Notice    of    —  59 

Award — How    Made    —  59 

Award  Impeached   63,  68,  69 


9S6 


INDEX. 


ASBITRATTON"  AND  AWARD— GENEKAL  NOTE— 
Continued. 

Award    Indefinite 

Awards,    Items    in 

Award — Judgment    Entered    on    is    the    Court's.... 

Award — Miscaleulation     in 

Award  Must  Control  Large  Part  of  Matter  Sub- 
mitted   

Award   not    Imperfect    in    Form 

Award.    Objections   to    Waived 

Award — Ordered    Made 

Award — Part    of    it   Enforced 

Award — Practice    After 

Award — Keasons    for    not    Necessary 

Award    Registered 

Award  Set  Aside — Grounds  for 

Award,    Signed,    to    be 

Award — Stipulation    to    Abide    by 

Award — Time    of    Entry    of 

Award    Uncertain 

Award  Unreasonable 

Awards   Upheld — Cases   Cited 

Award   upon    Matters   not   Submitted 

Award   Vacated.    When 

Award  Void  if  Parties  cannot  Control  Matter  Sub- 
mitted     

Award  Void  if  Unlawful  Eeasons  are  Given  for 
it    

Award   Void — WTien 

Award — When    to   be   made 

"Barred    Claim"    Submitted 

Bar   to   Action — When    

Beneficial    Societies 

Bias,  Knowledge  of  Party 

Bias   of   Arbitrators 

"Boards   of   Arbitration" 

Boards — Arbitration,    Conditions    in 

Cases   Cited  Sustaining  Certain   Award 

Costs,   Agreement  to  Paj'    

Costs    and    Expenses 

Costs — Authority  to  Award  Them — Different  Ques- 
tions     

Costs,   Award   of    

Costs  Below  Court 's  Jurisdiction 

Cost-bill   Se«ms  to  be   Necessary,  if 

Costs — Compensation    of    Arbitrators 

Costs  not  Paid — No  Award  ["Pas  d 'Argent,  Pas 
de   Suisses "] 

Costs  of  Arbitration — A   Lawyer's   Opinion 

Costs — Paid  by  both  Parties 

Chance — Decision    by    

Clerk  of   Court — Authority  to   Enter   Submission.. 

Clerk  '3    Entry — Award 

Common-law   Right   to   Arbitrate 

Compensation,    Agreement    for    

Compensation    of    Arbitrator — Costs 

Complete   Award    

Compulsary    Arbitration    

Conclusiveness   of  Award    


No. 


Page. 

—  P9 

—  63 

—  67 

—  71 

—  46 

—  71 

—  74 

—  47 

—  63 

—  73 

—  62 

—  59 

—  73,  74 

—  63 

—  47 

—  64,  65 

—  60 

—  60 

—  61,62 

—  71 

—  68,  69 

—  46 

—  61 

—  59 

—  63 

—  46 

—  64 

—  46 

—  71 

—  70 

—  46 

—  54,  55 

—  61,  62 

—  66 

—  55 

—  65 

—  65 

—  66 

—  65 

—  66 

—  66 

—  65 

—  66 

—  62 

—  49 

—  57,  59 

—  44 

—  66 

—  66 

—  59 

—  44 

—  63 


INDEX.  987 

AEBrrRATTO^r   \TSrD  AW AED— GENERAL  NOTE— 

Coritimiid.  No.  Page. 

Compnlsorv    Aw.ir'l     —  47 

rondition-i.l    Aw  inl    —  GO 

rnnstriT'tinr    of    Award — Tiiberal    —  R4 

roiitr<^t    of    Will —  49 

Construction    of    Statutes   as    to —  46 

Contract   to    Arbitrate   Disputes    —  47 

Contracts — Tlleffal —  4R 

"Controversy" — Meaning   of —  CiH 

Corrrcted    Award     —  71 

Corruption    in    Award —  6S.  (V.) 

Courts  of  Eiiuitv   and   Award —  71 

Courts— Rule    of —  49 

Painapes  for  Revocation —  57 

Death    of.    Arbitrator.   EITeet   of —  67 

Deceit   in    Arbitrations    —  59 

Decision — Appeal    From    —  73 

Decision    Arrived   at  by   Chance —  62 

Delegation    of    Authority —  69 

Deposits    to    Abide    Award —  55 

Diligence   Necessary,    When —  59 

Discontinuance  of  Pending  Action  by  Reference  to  —  46 

Disputes,    Contract    to    Arbitrate —  47 

Enforcement    of    Award —  63 

Entry   of   Award,    When —  73 

Entry  of  Award — Time  of —  64,  65 

Entry   Ret    Aside —  71 

Errors  and   Misconduct —  69 

Errors,   Waiver   of —  69 

Estoppel — Award    as    a —  59,  63 

Evidence  Excluded — Error  when —  6S 

Evidence,    Parol —  69,  70 

Examination    of    Arbitrators —  71 

Expenses  of  Arbitration —  55 

Eailnre   of   Arbitrators   to   Agree —  67 

Filed— Must  be —  59 

Final    Award —  60 

Finality   of    Award —  70 

Fraud   in    Award —  60 

Frnud   Tnflu'^ncing    Award —  6S 

"Fraud,"   Meaning   of —  69 

Filing  Award  and  Serving  Notice  of —  73 

Grounds  of  Award —  71 

Honest  Intention — Legal  Fraud   may  be —  69 

Illegal    Contracts —  46 

Impeachment    of    Award 63,  68,  69,  70 

Improper  Actions  at  Hearing —  68 

Improper  Proceedings —  69 

Intent  to  Commit  Fraud — A  Fact —  49 

Interest  of   Arbitrator —  70 

Invalid    When —  49 

Irrevocable    Submission    —  47 

Issues,    Award    Beyond    —  63 

Items   in    Award    —  63 

Judgment — Appeal    from   * —  67 

Judgment — Entrj'    has    Effect    of —  59 

Judgment   Entry   Set   Aside   on   Court's   Motion   if 

Submission  is  Void   —  67 


QS8 


INDEX. 


ARBITRATION  AND  AWARD— GENERAL  NOTE— 
Continued. 

Judgment    Void    if   Submission    does    not    Conform 

to   Law    

Jurisdiction,  Limit  of 

Jurisdiction — Loss    of 

Jurisdiction   not  Given   by  Contract 

Knowledge    of    Prejudice    by    Party 

Land — Agreements   as   to 

Land,  Conveyed  to  be,  at  Fixed  Price 

Land — Title  not  Involved,   may  be  Considered.... 

Lands— Title   to " 

Law,    Award    Against 

Law — Dry 

Law — Strict,  Need  not  be  Followed 

Lawyer 's   Opinion   as   to   Costs   of 

Liberal  Construction  of  Award 

Matters   not    Submitted — Award    on 

Meetings   of   Arbitrators — Notice   of 

Meeting — Refusal     to     Postpone 

Mining  Claims   as  Freehold   Estates 

Miscalculation    in    Award    

Misconduct    and    Errors    

Misconduct    Influencing    Award    

Misconduct — Waiver   of 

Mistake   of  Law   by   Arbitrators 

Modification   of   Award    

Notice  of  Filing   

Notice   of  Time   and  Place  of  Meeting 

Oath   of    Arbitrator    

Oath    of    Witness    

Objections   to   Award — Waiver   of 

Order  of  Court — Submission    

' '  Order   of    Court, ' '    What    is 

Parol    Agreement    to    Arbitrate 

Pay — Arbitrator    Entitled    to     

Parol   Evidence    

Parties,  Jointly  and  Severally  Liable  for  Services 

of  Arbitrator    

Partners — Stipulation  by    

Performance  Impossible    

Place   Where  Award   is  Made 

Postponement  of  Hearing,   Refusal  of 

Powers  of  Board  Exceeded    

Practice   After   Award    

Practice — Appeal   from   Decision    

Prejudice    of    Arbitrator     

Presumption  as  to   

Proceedings   Improper    

Real   Property   as   Subject   of    

Reasons   for   Award    

Refusal   to   Arbitrate — Damages    

Refusal   to   Hear  Witnesses    

Refusal    to    Postpone    Meeting 

Relationship   of    Arbitrator    

Revocation     

Revocation — Damages  for   

Revoked — Submission — When    may    be 

Rule   of  Court    

Service   of  Notice   of  Piling  Award 


No.  Page. 

—  67 

—  45 

—  59 

—  44 

—  71 

—  60,  61 

—  60,  61 

—  60,61 

—  60,  61 

—  71 

—  68 

—  61 

—  ery 

—  64 

—  71 

—  59 

—  69 

—  45,46 

—  71 

—  69 

—  68 

—  69 

—  61 

—  70 

—  59 

—  59 

—  53 

—  53 

—  74 

—  48 

—  49 

—  44 

—  66 

—  69,  70 

—  66 

—  48 

—  68 

—  63 

—  68 

—  68 

—  73 

—  73 

—  70 

—  59 

—  69 

—  45 
61,  62,  70 

—  57 

—  69 

—  69 

—  71 

—  47 

—  57 

—  57 

—  49 

—  73 


INDEX.  939 

ABBITRATTON  AND  AW AED— GENERAL  NOTE— 

Continued.  No.  Page. 

Signing   Awani    —  6."? 

Set   Aside,   When    —  59 

Statute — Application    of     —  44 

Statutes — Construction    of    as    to —  4fi 

Statute   of   Limitations    —  4') 

Stipulation  as  to  Time   of  Awanl —  •"'.' 

Stipulations   by    Partners    —  4'^ 

Stipulation    to    Abide    by    Award —  47 

Stipulation    to    Arbitrate    —  47 

Stipulation  to  Refer  to  a  Referee  is  not  Agreement 

to    Arbitrate    —  46 

Stipulation  to  Submit  as  Consideration  for  Promise 

to  Pay   —  44 

Submission    not    Conforming     to     Law,     Entry     of 

Judgment    is   Void    —  67 

Submission — Order    of    Court     —  48 

Submission  to  Arbitration  Waives  Statute  of  Lim- 
itation      —  4G 

Submission   to   be   in   "Writing —  44 

Submission     Withdrawn — Damages     —  57 

Submission   Void,    Court   will   Set   Judgment   Aside 

Without   Motion    —  67 

Testimony  of  Arbitrators    —  71 

Time   of   Entry   of    Award    —  64,65 

Time  to  Procure   Witnesses    —  69 

Umpire — How  Selected    —  49 

Uncertain    Award   not   Good    —  59,  60 

Unlawful  Reasons  for  Award — Fatal  to  It —  61 

Unreasonable   Award    —  *''^ 

Vacated — A  ward    may    be     —  68,  69 

Vacation   of   Award    —  58,  59 

Void — Judgment   if   Statute   not   Followed —  67 

Void,    Award — When    It    is 59,60,61,69.75 

Waiver   of   Error   or   Misconduct —  69,  70 

Waiver    of    Objection    to    Award —  74 

Withdrawal    of   Submission    —  57 

Will    Contest    —  49 

Witnesses — Refusal   to   Hear    —  69 

Witness — Time    to    Procure    —  69 

AEBITEATOIIS.      See    Affidavit;    Arbitration    and    Award; 
Notice;    Order. 

To  Show  Cause — Why  Award  is  not  Made 54  51 

AECHITECT. 

To    Owner,    Notice 378  272 

ABEEST.     See   Affidavit;   Order;   Writ. 

AEEEST  AND  BAIL.     See   Affidavit;  Order;   Writ. 

AEEEST,  DISCHAEGE  FEOM.     See  Affidavit;  Order. 

ASSIGNMENT.     See   Notice. 

Account — Indorsed    on     91  82 

Assignment  Annexed  to  Instrument    SO  74 

Assignment,  Homestead  of,  to  the  Widow  of  Deceased 

on  Court's  Motion — Separate  Property  of  Deceased..  297  233 


990 


INDEX. 


ASSIGNMENT— Continued.  No.     Pag«. 
Assignment,  Homestead  of,  to  the  Widow  of  Deceased 

on  Court's  Motion — Separate  Property  of  Deceased..  297  232 

Assignment,    Patent,    of    456  322 

Assignment,    Patent,    of — Long    Form 455  322 

Bond    82  77 

Bond    and   Mortgages    of    99  8.5 

Contract  for  Sale  of  Real  Estate 8.5  79 

Copyright    86  80 

Creditors — Their    Benefit    for     104  90 

Debt   of    84  79 

Debtor — Insolvent    by     88  81 

Debtor  to   Sheriff    102  86 

General    89  81 

Indorsed  on  Instrument    81  77 

Indorsement  on  Policy    95  83 

Insolvent   Debtor   by    88  81 

Insurance  Policy  of    92  82 

Insurance  Policy  as  Security    93  82 

Judgment   of    100  85 

Judgment  of,  Short  Way    101  86 

Lease,    of    94  82 

Lease  by  Indorsement  on  Policy  95  83 

Mortgage,    of    96  83 

Mortgage    and    Bond    99  85 

Mortgage  with   Covenant    97  84 

Mortgage,    Covenant   Indorsed    on 98  85 

Notice — Assignee   to    Creditors 105  91 

Notice   to    Creditors — Published 106  92 

Partner— One   to  Other    83  78 

Real  Estate — Contract  for  Sale   of 85  79 

Seaman 's  Wages    87  80 

Sheriff  to   Trustee   of   Creditors    103  89 

Stock   of    90  82 

GENERAL  NOTE: 

Action   on    — 

Action   Founded   on    Tort    — 

Actions    Pending    on     — 

Agent,  Property  in  his   Hands    — 

Assessment    for    Street    Work    — 

Assignee,   Election   of    — 

Assignee  of  Insolvent    — 

Assignee — Liability    of    — 

Assignee,    Rights    of    — 

Assumption   as   to    — 

Attorney  at  Law  Taking    — 

Attorney 's    Demand    for    Services    — 

Burden   of   Obligation    — 


89 
76 

89 


INDEX.  Wl 

ASSIGNMENT— GENERAL  NOTE— Continned.  No.  Pape. 

('itttle,    Inert a«c    of    —  7** 

Chosps  in   Action,  of    —  74 

Collection,    for    —  76,  77 

Consideration,    for     —  76 

Contract    Assigned    —  74 

Contract — Assignee    Bound    by    It —  77 

Contract  of.   Destroyed    —  77 

Contracts  of  a  Personal  Nature    —  76 

Contract — Suit  not   to   Defend,  may   be —  74 

Contract  for  Use   of   Animals,   may  be —  74 

Conversion — Riglit   of    Action    for    —  75 

Creditor,  Assignment   of   and  for    —  ^7 

Creditors,   for    Benefit   of    —  ^7 

Creditor 's.    Meeting    —  89 

Crops   may  be    —  74 

Debt    Secured   by   Mortgage    —  75 

Debtor   Insolvent,    When    —  87 

Defenses   to    —  77 

Delivery    not   Made    —  76 

Destruction    of   Contract   of   Assignment —  77 

Election    of    Assignee    - 

Equitable   When    - 

Foreign   Creditors    - 

Good  Faith  of    —  77 

Grant  as  Assignment    —  76 

Homestead    Right,    Soldier 's    —  75 

How   Made    —  76 

Insolvent 's  Procedure  Under   —  87 

Inventory  of  Insolvent    —  88 

Laborers '   Liens    —  75 

Law  Governing  Creditor 's    —  87,  88 

Legal   Title  of   —  77 

Liability   of   Assignee    —  77 

Liens   of   Laborers    —  75 

Malicious   Prosecution    —  75 

Money    to    Become    Due —  74 

Mortgage,   of    —  75 

Negotiable    Instruments — Setoff    to    —  77 

Notice,   Sheriff   to   Creditors  by    —  87 

Obligation,    Burden    of     —  "6 

Officer,   Public,    Salary   of    —  75 

Order  by  Creditor  on  Debtor    —  76 

Passenger's  Contract  not  to  Carry,  may  be   —  74 

Pre-emption    of   Land    —  75 

Promise  not  to  Assign    —  75 

Proxies   at   Creditors '   Meeting    —  89 

Public    Policy,    Against     —  74 

Right   of   Action    for   Conversion    —  75 

Rights   of   Assignee    —  75 

Rule  as  to  Assignments —  76 

Salary    Before    It    is    Due —  75 

Setoffs   to    —  Vj^ 

Sheriff  and  Insolvent 's    ^ —  87 

ghopg — Assignee    Stands   in    Assignor's    —  ^76 

Statutory   Proceedings    —  87-89 

Street   Work,   Asscs.sment   for    —  73 


992  INDEX. 

ASSIGNMENT— GENERAL  NOTE— Contimiecl.  No.  Page. 

Validity    of    —  l^ 

Void,   Contract    of    —  ''^ 

Voting  at  Creditor 's  Meeting   —  89 

"Warrant    May    be —  J* 

What   may  be    '^ 

ASSISTANCE.     See  Writ. 

Writ  of    1577  944 

ATTACHMENT.     See  Affidavit;  Notice;  Order. 

ATTOKNEY  AT  LAW. 

Acceptance    of    Substitution    817  482 

Appointment  of— Inheritance  Tax    818  482 

Notice   of  Lien   of    382  273 

Substitution   of    816  482 

BAIL.     See  Bond. 

BANK  DEPOSIT.     See  Affidavit;  Citation;   Order;  Petition. 

BILLS. 

Bank  Check    ^09  93 

Bank   Draft    HO  93 

Bill   of  Exchange    107  92 

Bill  of  Setoff   108  92 

Bills  of  Sale    HI  03 

Bills   of   Sale    112  94 

Bills  of  Sale   113  94 

BONDS.     See   Affidavit;   Notice;   Order;   Petition. 

Administrator   on   Qualifying    820  483 

Administrator— Sale  of  Eeal  Estate    821  484 

Administrator— Special 822  485 

Administrator,  to,  on  Sale  of  Contracts  for  Purchase  of 

Lands    823  486 

Appeal,  Costs  of    838  498 

Appeal — Delivery   of   Documents    82.5  488 

Appeal  from.  Money  Judgment    824  486 

Arbitration— Covenants   to   Keep    128  100 

Arbitration    on    62  53 

^n-est— On   Order   of    828  491 

Arrest  on  Part  of  Defendant    829  492 

Arrest   on   Part   of   Plaintiff    827  491 

Attachment   on    830  492 

Attachment   on    1248  726 

Attachment— Indemnity,    on    145  110 

Attachment— Release    of    Common    Law 832  494 

Attachment— Release  of    831  493 

i           Attachment,    Release    of    1249  726 

Attachment-SUy  of  Levy   833  495 


INDEX.  993 

BONDS — Continued.  No.  Page. 

Bail — On    Indictment    834  498 

Bail  Money  Deposited  for,  Forfeited    8.35  496 

Bail — General    1252  729 

Bill    of     Lading,    to    Produce 137  105 

Bottomry    132  102 

Claim  and  Delivery  on    836  497 

Clerk 's  Fidelity  for   819  48.3 

Condition    of    63  53 

Condition    of — Lost    Stoek    228  166 

Confession    of   Judgment    134  104 

Contract — Bond  Indorsed  on    136  1 05 

Contractor's — United    States    Work    147  112 

Contract  "Void   if  Party  Dies    135  104 

Convey   Land,   on    117  95 

Covenant   to   Perform    126  100 

Covenant   to   Perform    127  100 

Damages  to  Pay  for  Use  of  Name   124  99 

Deed   for    130  lOl 

Documents — Delivery    of — On    Appeal    826  489 

Employee,  for  Faithful  Service    140  107 

Encumbrances — Against 117  9(5 

Execution — Indemnity  on   146  m 

Executor — Inheritance   Tax    843  502 

Executor — More    than    Two    Sureties    839  499 

General   Form    131  io2 

General  Form    133  i03 

Guardian  on  Qualifying    840  500 

Guardian — Sale   of   Real   Estate    841  501 

Husband  and  Wife  to  Separate   118  96 

Indemnity    142  108 

Indemnity    to    Surety 143  109 

Indictment  on    834  496 

Indorsed,  Indemnity  to    121  98 

Inheritance   Tax — Beneficiary,   by    842  502 

Inheritance   Tax — Executor   by    843  502 

Injunction    on    844  503 

Interest  not  Paid — Total  to  be  Paid    I39  ige 

Judgment   to    Confess    I34  104 

Keep  Person  During  Life,   to    120  97 

Labor   for   United   States   Work    147  112 

Legatee 's — On    Distribution    138  106 

Letter  of  Credit    116  95 

Levy,  Stay  of    833  495 

New  Forms — 63 


994  INDEX. 

BONDS— Continned.  No.     Page. 

Loan   of  Securities  for    l'^'^  ^^ 

Lost   Note — Bond   on   Paying    114  ^^ 

Money  Judgment — On  Appeal   from    824  486 

Money   to    Pay    ..'. 1^-5  ^'^ 

Minor's  Behalf— That  Tie  Will  Convey  Land    119  97 

Notary    of    144  HO 

Official— Any   Office    129  101 

Official— Adjudicated    14S  103 

Order  of  Arrest,  on    828  491 

Owners — Master   of   Ship   to    =  •  •  •  122  98 

Peace    to   Keep    12-^5  731 

Plaintiff  in  Replevin    836  497 

Public  Works — "United  States    147  112 

Eelease  of  Attachment    831  493 

Eent  to  Pay— Title  in  Question   123  98 

Replevin   in— Part   of   Plaintiff    836  497 

Replevin,   Defendant   on    837  498 

Return    to    Defendant    837  498 

Sale   of  Land — Administrator,   to,   on   Sale   of   Contract 

to   Purchase    823  486 

Sale  of  Real  Estate — Administrator,   on    821  484 

Sale  of  Real  Estate— Guardian    841  501 

Several  Persons  by    149  117 

Sureties— More    than    Two     839  499 

Sureties — On   More    than    Two    830  499 

Treasurer   or   Trustee    ]41  107 

United    States    Contract    147  112 

Witness — To   Appear    1245  730 

GEI^RAL  NOTE: 

Administrator    by — Contents    of     —  500 

Amendment    of    114 

Amendment,   Official,   of    —  113 

"And,"    Meaning    of    —  H-'^ 

Approval    of    Official    113,114 

Arrest- On    Part    of    Defendant    —  492 

Arrest- On   Part   of   Plaintiff —  491 

Assignment    of    ' ' 

Attachment,    on — Contents    of    —  493 

Attachment,   on— Release   of   Contents   of    —  494 

Attachment — Release  of  Contents  of  (Common-law 

Form)     -  495 

Attachment,   on— Stay   of   Levy —  4yb 

"Baptismal   Name"   Wrong    —  Ho 

Claim  and  Delivery  on.  Contents  of —  497 

Claim   and   Delivery — Return   of   Property     to     De- 
fendant— Contents   of    498 

Collateral   Security  as   —  H^ 

Construction    of    ]  |  '^ 

Consideration   for    Official    l^-^ 

Costs  of   Appeal,  for — Contents  of    —  499 


INDEX.  995 

BONDS— GENERAL  NOTE— Continued.  No.     I'.ifr". 

County    {\^ 

Coupons    ■*  113,116 

Deed   for    2lg 

Delivery    of,    Official    IK^,  111 

Dopiitios — Offipial.    of    113*  114 

Executor  by — Contents  of oOf) 

Filing   of.   Official    113,114 

Governing — Law    of    115 

Guardian   by,   Contents  of    501 

Guardian  by — Sale  of  Real   Estate — Contents  of..  —       502 

"Holder   and    Bearer"    HH 

Indemnity   of    1 1  r; 

Indictment,  on  Contents  of    —       490 

Information,   on    Contents   of    —       496 

Injunction  on — Contents  of    —       303 

Intention    of    Maker    115 

Intention   of  Signer    9.'5 

Interest    on    115 

Joint    and   Several    —         95 

Justification  of  Sureties   —         95 

Law    Governing    115 

Maturity — Interest    After    115 

Mistake    in    Home    II5 

Money    for.    Generally     II5  nr, 

Municipal     n5 

Negotiability   of    Uq 

New,  may  be  Required  on  Sale  of  Real  Estate ....  —       48.1 

Official — .'\mendnient   of    II4 

OfTicial,    by   OfRcer — Void    When    9-, 

Official — Consideration     1 15 

Official — Delivery    of    " 113,114 

Official — Depvities    by    113   114 

Official — Filing   of    113  114 

Official — Generally    113,  114  115 

Official — Intention  of   Signer    95 

Official — Justification    of    Sureties    95 

Official — Joint   and    Several    95 

Official — New   Term    113  114 

Official — Payee   iu    95 

Official — Rejection    of    114  11.1 

Official — Seal    to    115 

Official— Successive   Terms    114 

Official — Terms    to    File,    in    114 

Official — Two   Offices  Held  by  One  Person 114 

Official — Time   to   File    113.114 

Official — Undertakings,  Same  as  Books   114 

Official    Wording   of    114 

On   Appeal — What   to    Contain 4S7.  488  48v> 

On   Sale   of   Real    Estate — Amount   of '—     '485 

"On,"  "In" — Meaning  of,  in   Bond    115 

Place  where  Made  as  to,  Governing  Them 115 

Payee   in    —         95 

Payable   to   Bearer    m^ 

Pledge   of    _       116 

Purchaser's    Rights    jjg 

Reasonable    Constructiou    of    J25 

Eejeetion   of   Official    II3   j|_| 


996  INDEX. 

BONDS— GEXERAL  NOTE— Continued.  No.  Pagp. 

Replevin   on,   Contents    of —  497 

Replevin   on — Return   of   Property     to     Defendant, 

Contents   of    —  498 

Rights   of  Purchaser    —  IIR 

Seal— "No    Seal    No    Bond" —  115 

Seal,   Official    13,  14, 15 

Successive   Terms    113,114 

Time   to   File,   Official    113,114 

Validity   of    115,116 

Void,   Official,    When    —  95 

CEREMOITY  OF  MARRIAGE.      See   Certificate. 

CERTIFICATE. 

Action,    None    Pending    413  292 

Admission — Practice   Law,   to    465  512 

Appointment   of — Oath   to    846  504 

Apjwintment,    Road    Overseer   by    845  504 

Attachment,  Writ — Issued  by  Justice  of  Peace  to   ....  848  505 

Clerk— Corporation    of     203  157 

Clerk    of.    General     868  513 

Church — Incorporation    of     198  154 

Clerk,  Minute  Order  of   864  512 

aerk— Papers    on   File    of 863  511 

Clerk,  Writing   or   Signature   to    867  513 

Coroner 's — Value  of  Services  192  150 

Corporation — By-laws   to    234  172 

Corporation — Continuance   of  Existence   under   Code...  199  155 

Corporation — Continuance    of    Existence    under    Code..  200  156 

Corporation — ^Incorporation   of    195  151 

Corporation — Reincorporation   of    196  153 

Death,    of    190  150 

Death,   of    182  147 

Decree    to — Copy    of    869  513 

Duplicate    857  509 

Election  of    ' 849  505 

Execution— Real  Estate,   Sale   of    858  509 

Foreclosure,   Sale   on    859  510 

General,  Clerk  of    868  513 

Identity   of    Claim    397  282 

Judgment-roll    861  511 

Jurors — Service    862  511 

Marriage,   of    852  506 

Marriage,    of    853  506 

Minor,    Citizenship   of    854  506 

Minute   Order— Clerk 's    864  512 

Notary   Public,   of    866  512 

Notary  PubUe   Taken   aath,   that 847  504 


INDEX.  997 

CKETIFICATE — Onntiiinod.  No.  Page. 

Notice,    Posting    for    Sixty    Day8 — Mining 412  292 

Office,   Oath   of    850  505 

Papers    on    Pile,    Clerk,    by 863  511 

Proof   of   Will,    of    1565  934 

Proof  of  Lost   Will    1564  933 

Redemption    of    1164  696 

Residence,    of    1590  9C2 

Road   Overseer,   Appointment    of 845  504 

Sale,    Foreclosure,    on     859  510 

Sale,  Real  Estate — Execution    858  509 

Signature    to    851  505 

Tax  Sale — Real  Estate — Individual,   to    855  507 

Tax  Sale — Real  Estate — State,  to    856  508* 

Transcript    860  510 

Value    of    Services — Coroner 192  150 

CERTIORARI.      See   Affidavit;     Notice;     Order;     Petition; 
Writ. 

Writ    of    1576  943 

CHATTEL  MORTGAGE.     See  Mortgage. 

Affidavit   to    420  302 

Acknowledgment   of    421  302 

CHURCH  MORTGAGE. 

By    431  313 

By    432  314 

CITATION.     See  Affidavit;  Order;  Petition. 

Administrator,    Court    to 870  514 

Banker — Unclaimed    Deposit — To    874  516 

Cause,    to    Show    872  514 

Distribution,   Executor  on   Petition   for    873  515 

Inheritance    Tax,    on    876  517 

Savings  Bank,   to    875  516 

GENERAL  NOTE: 

Application    for    —  515 

Clerk   to   Sign    —  515 

Contents    of    —  515 

Directed — How    —  515 

Service    of    —  515 

When  to  Issue   —  515 

CLAIM.     See  Creditor's  Claim. 

CLAIM  AND  DELIVERY.     See  Affidavit;   Bond;   R^-plevin. 

COMMITMENT. 

Citation  by  Court  Before   871  514 

Juvenile    Court    878  519 

JuvenOe   Court    879  519 

Prison — General — To    S77  518 


998  INDEX. 

COMPLAINT— PI.EADI7SrGS.     See  Demurrer.  No.     Page. 

Acceptor,   Without   Funds,  vs.  Drawer 880  520 

Administrator,    by    881  520 

Administrator,   vs 882  521 

Arrest,    ^lalicious,    for     88.3  521 

Assignee— Trust,   Wife    for    884  522 

Assignee,    Creditors    for    885  522 

Attachment,  Sheriff  Aid  of   979  583 

Attorney,   Negligence,   for    886  523 

Bills,  Foreign — Payee  vs.   Drawer    887  523 

Bond,    Official,    on 888  524 

Borrower    vs 889  524 

Breach  of  Contract  to   Arbitrate    67  56 

Breach   of   Contract   to   Employ 896  527 

Breach  of  Contract  to  Manufacture   897  528 

Breach    of    Contract    to    Serve 898  528 

Breach  of  Covenant 912  533 

Breach   of   Covenant     913  539 

Breach   of   Covenant    914  540 

Builder — Special  Damage  for  Loss  of  Rent,  vs 890  524 

Cargo,  Lost  by  Fire   924  545 

Cattle,   Trespassing    891  525 

Claim  and  Delivery    892  525 

Claim    and    Delivery 1152  689 

Collision,    Injuries    by    893  526 

Common  Carriers  vs 894  527 

Compromise,    Upon     895  527 

Contract,  Breach   of,   to   Employ    896  527 

Contract,  Breach  of,  to  Manufacture 897  528 

Contract,   Breach   of,   to   Serve 898  528 

Contractor,   Insecure    Street   vs 900  530 

Contractor,   Material   vs 952  559 

Contractor,  Special  Contract,  by   899  529 

Conversion — Personal   Property   of 901  530 

Copartnership — Draft  Accepted  and  Paid,   on 903  533 

Corporation    by    904  533 

Corporation — Assault  and  Ejection,  vs 905  534 

Corporation — Assessment    on    906  534 

Corporation — Condemnation   of  Land  by 902  530 

Corporation,  Directors  of,  vs 907  535 

Corporation,   Municipal,   vs.   Street    908  536 

Corporation,  Special   Law  Under    909  537 

Corporation — Subscription   on    910  537 

County,    vs 911  538 

Covenant,  Breach  of    912  538 


INDEX.  999 

COMPLAINT— PLEADINGS— CoBtinned.  No.     Pa^e. 

Covenant,  Encumbrances,  Breach  of   913  539 

Covenant,  Breach   of    91+  540 

Cre<}it,   Praudulently   Procuring    9ir,  540 

Creditor,   Stockholder   vs.        910  540 

Delivering,    for    not    917  541 

Deposit,    Repayment   of,   for    972  580 

Devisee  by    918  541 

Different  Journey — Horse   Driving,   for    933  550 

Disobeying  Subpoena,   Witnesa   V3 1003  597 

Ejectment,    in    919  542 

Ejectment,    in    920  542 

Engineer,  Injuries  to    921  543 

Enticing,    Wife    1002  596 

Escape— Sheriff,   for    980  583 

Escape,  Water  of,  for   1001  595 

Execution — Sheriff — Neglecting   to   Return,   vs 983  585 

Executor,  by    ^-2  ^^ 

Executor,    Railroad    Company,    vs 923  544 

Expiration  of  Term,  Holding  Over,  for   932  549 

False    Imprisonment 936  551 

False  Return,  Sheriff,  vs 981  584 

Fire,  Cargo  Lost  by    924  545 

Fire   Policy,   on    938  552 

Fire  Policy,  Insured  by    939  552 

Fire  Policy,  Purchaser  by    940  553 

Furniture,   for    925  546 

Goods,  Price  of    926  546 

Guardian — Infant    vs 927  547 

Guardian — Infant    by    928  547 

Guardian — Insane   Person   by    929  547 

Guardian — Insane   Person    vs 930  548 

Holding  After  Rent   Due    1157  691 

Holding   Over,   for    931  548 

Holding  Over — Expiration  of  Term,   for    932  549 

Holding  Over— Term  Expired    11-^6  690 

Horse   Driving,    Different   Journey,    tor 933  5o0 

Husband  and   Wife,   vs 934  551 

Husband  and  Wife,  vs 935  551 

Imprisonment,   False    936  551 

Infant — Guardian,   vs 92 / 

Infant— Guardian,    by    928 

Injuries,   Collision,  by    S93  526 

Injuries,  Engineer,   to    92 1  o43 

Injury  to  Goods,  Warehouseman  vs 1000  595 

Injuries,  Vicious  Dog,   by    998  594 


547 

547 


1000  INDEX. 

COMPLAINT— PLEADINGS — Continiied.  No.     Paffe. 

Insane   Person,    Guardian,   by    ^29  557 

Insane  Person,  Guardian  va 930  548 

Insolvent,  Carelessly  Selling  to,  for   9<^7  552 

Insurance — Fire    Policy    on 938  552 

Insurance — Fire   Policy,   by   Insured 939  552 

Insurance — Fire   Policy,   by   Purchaser 940  553 

Insurance — Life  Policy,  Executor  by   941  553 

Insurance — Life  Policy — Wife,  Partner  or  Creditor  by  942  554 

Judgment,   Justice 's   on    943  555 

Judgment,   Foreign    on    944  555 

Land,    Partition    of    961  574 

Lease,  Promise  to   Surrender,  on    945  556 

Levying    not,    Sheriff,    vs 985  587 

Libel — Crime,   Charge   of — Words   not  Libelous 946  556 

Libel,    Composing    a,    for 947  556 

Li-bel — Foreign  Language,  Words   Spoken   in 948  557 

Libel,  Words  not  Libelous    949  557 

License,  Selling  Liquor  Without,  for   950  558 

Lien,   Mechanic 's   on    953  562 

Lien,  Mechanic 's    (Short   Form)    on    954  567 

Life  Policy,  Executor,  by    941  553 

Life  Policy— Wife,  etc.,  by   942  554 

Malicious   Arrest,   for    853  521 

Marry,  Refusal   to,   for    951  558 

Married   Woman— Sole   Trader    987  587 

Material,   Contractor,   vs 952  559 

Mechanic 's    Lien    on    953  562 

Mechanic 's   Lien — Short   Form,   on    954  567 

Minor   Son,   Services   of    978  583 

Moneys   Collected,   Sheriff,   vs 982  585 

Money   Count   Under    955  569 

Money  Paid  to  Third  Party,  for   957  570 

Money  Paid — Repayment   for    958  570 

Money  Had  and  Received,  for    956  570 

Mortgage,    Chattel,    on    959  571 

Mortgage,  Land,  on    960  572 

Nuisance,    Erecting    962  575 

Ordinance,   Violation   of    963  576 

Partition,  of  Land   Held  in   Common    961  574 

Partners  vs • ^64  576 

Partner    Surviving    by !"55  '^' ^ 

Penalty,  Statute,   Under    988  588 

Personal  Property,   Conversion   of    901  530 

Pledge,   Loss   of,   for    966  577 

Principal,    Surety    vs 990  589 


INDEX.  1001 

CJOMPI/AINT— PLEADLNGS^Continued.  No.  Page. 

Process — Sheriff,    not    Executing,    vs 984  586 

Proniise,    Express — Precedent   Debt,    on    967  577 

Promise,    Third    Person,    of     968  577 

I*romi8sory  Note  on    969  578 

Promissory  Note — Holder  vs.  Indorsser  and   Maker 970  578 

Purchaser,   Seller  vs 974  581 

Purchaser,   Sheriff 's  Sale,  by    986  587 

Eailroad   Company,   Executor   vs    923  544 

Receiver  by    971  579 

Rent,  Loss  of,  Special  Damage  for   890  524 

Repayment    of    Deposit,    for    972  580 

Repayment — Money  Paid,  for   958  570 

Sale,  Sheriff 's — Purchaser  by    986  587 

Security,    Giving,    for    not    973  581 

Seller,  Purchaser,    vs 974  58 1 

Seller,  Stock  of,  vs 975  582 

Selling    to    Insolvent,    for     937  552 

Selling   Liquor    Without    License    950  558 

Services — Fixed  Price,  for 976  582 

Services — Fixed    Price,    for 977  582 

Services,  Minor  Son,  of   978  583 

Sheriff— Attachment,    Aid    of 979  583 

Sheriff— Escape  for 980  583 

Sheriff- False  Return,  vs 981  584 

Sheriff — Moneys  Collected,  vs 982  585 

Sheriff — Execution,  Neglecting  to  Return,  vs 983  585 

Sheriff — Process,   not   Executing,    vs 984  586 

Sheriff — Not  Levying,  vs 985  587 

Sheriff's  Sale — Purchaser  by   986  587 

Sole  Trader— Married  Woman 987  587 

Statute,  Penalty  Under 988  588 

Stockholder,  Creditor  vs 916  540 

Stock,  Seller  of,  vs 975  582 

Street  Insecure,  Contrnctor,  vs 900  530 

Subscription — Public   Object,   for 989  588 

Surety.  Principal,  vs 990  589 

Tax,   State    and    County    on 991  589 

Telegraph  Company,  vs 992  590 

Title,  Quiet   993  591 

Title,  Warranty  of 994  592 

Title.  Warranty  of 995  592 

Trespassing  Cattle    891  525 

Undertaking  on 996  592 

Undertaking  on    997  591 

Vicious  Dog,  Injuries  by    99S  5 9 4 


1002  INDEX. 

COMPLArNT—PIiEADINGS— Continued.  No.     Pa^e. 

Wager,  Recover  Back,  to 999  .591 

■Warehouseman,  Injury  to  Goods,  vs 1000  59.-) 

Water,  Escape  of,  for   1001  595 

Wife,  Enticing  Away    1002  596 

Witness,   Disobeying   Subpoena,    vs 1003  597 

COMPLAINTS  AND  PLEADINGS  IN  MINOS  COUP,TS. 

Complaint — Air,    Insufficient 1138  680 

Complaint— Animals,  Cruelty  to    1  l-l-'^  6S.3 

Complaint — Assault — Deadly  Weapon    1116  669 

Complaint— Assault  to  Murder    1117  669 

Complaint — Burglary — First  Degree 1119  670 

Complaint — Claim  and  Delivery    1155  689 

Complaint — Common  Drunkard    1135  6/9 

Complaint — Criminal — Indorsement  on 1112  667 

Complaint — Criminal  Procedure — Robbery   1114  668 

Complaint — Cruelty  to  Animals 1143  683 

Complaint — Deposition   1113  637 

Complaint — Doing   Business    Without    License 1131  677 

Complaint — Doing     Business     Without     License — Ordi- 
nance   llo-i  Oil 

Complaint — Discharging  Firearms    1137  680 

Complaint— Disturbing  the  Peace 1146  684 

Complaint — Drunkard,  Common 1135  679 

Complaint — Firearms,  Discharging 1137  680 

Complaint — Fire  Ordinance,  Violating   1147  685 

Complaint — Forgery    1115  668 

Complaint — Gambling-house,  Visiting    1123  672 

Complaint — Gambling — Misdemeanor 1121  671 

Complaint — Gambling  Tools,  Possession  of   1122  672 

Complaint — Goods  Sold  and  Delivered— Justice 's  Court  1109  665 

Complaint — Goods,    Stolen — Receiving    1118  670 

Complaint — Holding  After  Expiration  of  Term 1156  690 

Complaint — Holding  After  Rent  Due 1157  691 

Complaint— Idle   and   Dissolute   Minor 1152  687 

Complaint — Insufficient  Fresh  Air  per  Capita 1138  680 

Complaint— Keeping  House  of  Ill-fame 1139  681 

Complaint — Keeping  Minor  in  House  of  Prostitution...  1133  678 

Complaint— Keeping  Office  for  Sale  of  Lottery  Tickets  1142  682 

Complaint— Keeping  Opium  Resort   1149  686 

Complaint— Land,  Rent  of    1110  666 

Complaint — Larceny,  Search-warrant 1120  671 

Complaint — License,  Doing  Business  Without   1131  677 

I           Complaint — License,  Doing  Business  Without   1132  677 

'           Complaint— License,  Selling  Liquors  Without 1145  684 


IISDEX. 


1003 


COMPLAINTS  AND  PLEADINGS  IN  MINOR  COUHTS— 
Continued. 
Complaint — Lottery    Tickets,    Keeping    Office    for    Sale 
of 


Comp 
Comp 
Com]) 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Comp 
Complain 


aint — Lottery  Tickets  in  Possession 


ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 
ain 


— Maintaining  a  Nuisance   

— Malicious  Mischief   

i — Minor  Employed  in  Exhibition    

— Minor  Idle  and  Dissolute   

^^inor,  House   of  Prostitution,   Keeping... 

Misdemeanor — Gambling 

— "Move   on,"   Refusing   to 

— Murder,  Assault  to   

— Nuisance,  Maintaining 

— Obstructing  Pailroad   

Obstructing  Streets 

— Oflice — Sale  of  Lottery  Tickets,  Keey)ing. 

— Opium    Resort,    Keeping 

— Opium  Resort,  Visiting   

— Peace,    Disturbing 

— Petit  Larceny    

Privy  not  Connected  with   Sower 

Possession  of  Gambling  Tools   

; — Promissory  Note   

— Prostitution,  Keeping  House  of 

— Prostitution,  Visiting  House  of    

— Railroad,  Obstructing 

— Receiving  Stolen   Goods    

Refusing   to   "Move   on"    

Rent  of  Land   

: — Robbery — Criminal    Procedure    

; — Rubbish,  Street,  Depositing   

— Rubbish   on  Street    

Search-warrant — Laroeny    

— Selling  Liquors  Without  License 

Sewer,  Privy  not  Connected  With 

— Streets  Obstructing    

— Street,  Rubbish   Depositing    

— Street,  Rubbish  on   

; — Vagrant — Against 

, — Violating  Fire   Ordinance    

— Visiting    Gambling-house     

— Visiting  House   of  Ill-fame    

— Visiting  Opium  Den   

— Vulgar  Language    


No. 

Page. 

1142 

6S2 

1141 

6S2 

1130 

670 

114S 

685 

11.34 

67»? 

11;j2 

687 

113.3 

678 

1121 

671 

1126 

674 

1117 

669 

1130 

676 

112.5 

67.3 

1136 

679 

1142 

682 

1149 

686 

1151 

687 

1146 

684 

1150 

686 

1129 

676 

1122 

672 

1111 

666 

11,39 

681 

1140 

682 

1125 

673 

Ills 

670 

1126 

674 

1110 

666 

1114 

663 

1127 

675 

1128 

675 

1120 

671 

1145 

684 

1120 

676 

1136 

679 

1127 

675 

112S 

675 

1144 

683 

1147 

685 

1123 

672 

1140 

682 

1151 

687 

1124 

673 

1004  INDEX. 

No.     Psf«. 
COMPLETION  OF  WORK,     See  Liens. 

Notice   of    381       273 

CONTEMPT  OF  COURT.     See  Affidavit;   Order;  Writ. 

Contempt  Committed — Affidavit   of    566       394 

"Contempt    Committed — Affidavit    of    584       406 

Contempt  Committed — Affidavit  of  Juror,  by 567       395 

Contempt  Committed — Affidavit  of  Juror,  by 568       396 

Contempt   Committed — Affidavit    of   Interference    Witli 

Court 570       397 

Contempt  Committed — Affidavit  of  Witness  by   569       396 

Contempt   Committed — Affidavit  of  Rescuing  Prisoner.        571       397 

Contempt    Committed — Affidavit    of — Eeferee    Neglects 

Duty 572       398 

Contempt  Committed — Affidavit — Refusal  of  Permission 

to   Take  Copy  of  Account    573       399 

Contempt  Committed — Affidavit  of,  Attorney  Assuming 

to  Act  Without  Authority    574       399 

CJontempt   Committed — Affidavit — Abuse   of   Process   of 

Court 575       400 

Contempt    Committed — Affidavit — Subsequent    Applica- 
tion for  Order  Refused  576       401 

Contempt  Committed — Affidavit — Re-entry  After  Eject- 
ment         577       401 

Contempt     Committed  —  Affidavit  —  Disobedience     of 

Court 's  Order 578       402 

Contempt  Committed — Affidavit   of   Willful   Neglect   of 

Clerk  to  Enter  Default    579       403 

Contempt   Committed — Affidavit   of   Willful   Neglect   to 

Serve  Subpoena    580       403 

Contempt   Committed — Affidavit   of   Attorney   Willfully 

Neglecting  His  Duty 581       404 

Contempt    Committed — Affidavit    of    Refusal    to    Obey 

Court 's  Order 582       404 

Contempt   Committed — Affidavit   of   Attorney    that   Ac- 
tion is  Pending  and  Testimony  is  Necessary 583       405 

CONTINUANCE.     See  Affidavit;  Order. 

CONTRACT. 

Agent   to    Sell    171  142 

Animals,  to  Sell 172  143 

Book  to  be  Published — Subscription  to   155  125 

Broker,  Real  Estate  to  Sell 171  145 

Broker,  Real  Estate  to  Sell 173  143 

Builder's     158  133 

Builder's,   Bond    on    159  135 


INDEX.  1005 

CONTRACT— Continned.  No.  Page. 

Building,  to  Erect   160  l.'io 

Charitable    Purpose,    for    l-'jl  123 

Church — Subscription  to   Build    1-JO  117 

Copartnership,  Forming   1G2  137 

Copartnership,   Merchants,    Between    103  13S 

Copyright  to  Sell   1"9  H6 

Corporation — Subscription  to  Take  Stock  in   1j2  123 

Creditor  with  Debtor   1"'  l-*"* 

Cultivation  of   Land,   for    180  146 

Debtor  with  Creditor 177  144 

Ditch    to    Construct    l-'j^  126 

Dissolution    of    Partncrsiiip    165  140 

General    l'^^  133 

Land — Option  to  Purchase    178  145 

Landlord   and   Tenants    175  144 

Land,  to   Cultivate    180  146 

Landlord   with,   and    Tenants    174  143 

Mason,  with    161  136 

Merchants — Forming  Partnership   163  138 

Notice  to  Dissolve  Partnership  and  of  Dissolution  of..  168  140 

Option   to   Purchase   Land    178  145 

Partnership,   Forming    162  137 

Partnership,  Forming   166  140 

Railroad  to  Build — Subscription  to    154  125 

Real  Estate  for  Sale  of  170  141 

Rent,  Surety  to  Pay  176  144 

Right    of    Way,    to    Secure 1-^3  124 

Renewing  Partnership    164  139 

Sale  of— Broker 's   173  143 

Sale  of  Real  Estate  for  169  140 

Specifications — Flume  and  Ditch  to  Construct 156  126 

Submission   to  Arbitration    51  50 

Submission  to   Arbitration    ,  ; 52  50 

Submission  to  Arbitration 56  51 

Subscription    Contract— Charitable   Purpose    151  123 

Subscription  to  Book  to  be  Published  155  125 

Subscription  to  Secure  Right  of  Way   153  134 

Subscription  to  Build  Structure 150  117 

Subscription  to  Build 154  125 

Sue— Not  to    ISl  147 

Surety  with — Landlord  for  Rent 176  144 

GENERAL  NOTE: 

Acceptance,    Notice    of — Subscriptions —  120 

Affection — Paternal     —  131 

"Against  Encumbrancers"    —  l"*! 

Agreements,  Subscription   —  118 


1006  INDEX. 

CONTEACT— GE^^:EAL  NOTE— Continued.  No.  Page. 

Agreement.   Supplemental — New   Consideration    ...  —  182 

Assignment  of  Subscription    —  121 

Balls,  to  Give — Subscriptions   —  118 

Banquets,  to  Provide — Subscriptions    —  118 

* '  A  Bell  Cow  Subscription  "    —  119 

"Blessings  of  Gospel,"  Subscriptions  to  Promote..  —  118 

Blessings,   to   Promote    —  118 

Book,    to    Publish    and    Subscriptions    Before    and 

After   Publication    —  125 

Building  Fund  Subscription    —  121 

Canal,    to    Dig — Subscriptions —  1]S 

Cemeteries,  to  Lay  Out — Subscription    —  118 

Changes  in  Contract  to  Build  After  Subscription..  —  122 

Charitable  Objects  for —  118 

Charitable  Purpose — Ball  and  Dinner  may  be —  123 

"Charitable   Purposes,"   "Money   Available"    and 

"Entertainments"    —  123 

Church — Subscriber  to  Build  Would  not  Pay  Unless 

Member    of    was    Excluded    from    Speaking    in..  —  121 

Conditions  of  Contract    —  131 

Conditions  Stipulated  in    —  119 

Conditional   Proposal    —  132 

Consideration    —  131 

Consideration  Executed   —  131 

Consideration  Imported    —  131 

Consideration,  Option  for   —  132 

Consideration — Prejudice   Suffered    —  131 

Consideration  Presumed,  Whm    —  131 

Consideration — Subscription   for    —  118 

Consideration  Valuable    —  131 

Contingent  Subscriptions —  118 

Contract — Creation   of    —  129 

Contract  to   do   Duty    —  131 

Contract— Offer— When  It  is    —  132 

Corporation  and  Subscription  to  Form  One    —  124 

"Covenants — Usual"    —  141 

Creation  of  Contracts    —  1 29 

Death  of  Subscriber   —  121 

Delivery — Contract,  Under   —  132 

Delivery  and  Payment   —  1 42 

Deposit,    Withdrawal    of —  142 

Discharge  of  Subscriber —  121 

Duplicate   Delivered,   Other   not,   what —  132 

Duplicate  Instrument   —  132 

Duty,   to   do,  not   Contract    —  131 

Entertainer  under   Subscriptions   and   "Sources   of 

Enjoyment " —  123 

Entertainment — Ball  and  Dinner  as  a  "Charitable 

Purpose"   —  122 

Entertainments — Money  Available  and  "Charitable 

Purposes"   —  123 

Executed  Consideration —  131 

"Execution" — Meaning   of    in    —  132 

Failure  to  Kead  Contract  as  an  Excuse    —  132 

' '  Further  Assurance "    —  141 

' '  General   Warranty "    —  141 

Good  Consideration —  131 


INDEX.  1007 

CONTEACT — GENERAL  NOTE — Continued.  No.  Page. 

"ilaa   Executed,"   Meaning  of   in —  1^2 

Horserace    Premiums — Subscription    to    Pay — 

Insanity   of   Subscriber    —  121 

Insolvent  Debtor 's  Promise    —  131 

Joint  and  Several  Liability  on  Subscription  Paper.  —  122 

Judicial  Notice  Taken  of  Entertainments    —  123 

Liability  Incurred   on  Faith  of  Subscription —  120 

Liability  of  Subscribers    —  122 

Liability  for  Subscription,  When  Fixed —  119 

Loaded  Contract — Party  did  not  Know  It  was— No 

Relief —  1^3 

Mark   as   Signature    13'- 

Modification  of — Consideration  for —  132 

Money  Available  and  Sources  of  Enjoyment —  123 

Money  Expended  on  Faith  of  Subscription 12u,  121 

Money  Subscribed — Misuse  of  as  to  Subscription..  —  121 

Moral   Oblig-ation — Consideration   for  Promise —  131 

Mutual  Obligations —  118 

Neglect    to    Read    Contract 133 

Negligible  Omissions  as  to   133 

Negotiable   Instrument — Subscription    as —  121 

New  Consideration  for  Supplemental   Agreement..  —  132 

Notice  of  Acceptance  of  Subscription    —  120 

Obligation  Moral  or  Paternal    131 

Obligations  Mutual    ^^^ 

Offer — Contract,  not  an   131 

Offer— Retraction  of —  '^^^ 

Offer — Subscription,  may  be  only   119 


Offer — Subscription,   as   an 


120 


132 
132 


^      —  r  1^^ 

Omissions  in _  „_ 

Ontion — C'onsideration  for 

Option — Notice  of  Acceptance    

Uliiion — Witiidravval  of    131,13., 

Oral  Promise  to  Subscribe    1-^ 

Paternal  Affection —       1^| 

Payments  Correspond  to  Word  Done   1^1 

Payment  and  Delivery   ^^ 

Payment,   Partial    ^^j' 

Performance — Time   of   as  to   Subscription —       1-0 

Promise  of  Insolvent  Debtor    131 

Promise  to  Pay  Barred  Debts   —       131 

Promise  to  Subscribe    1^;^ 

"Quiet    Enjoyment" ||^ 

Racetracks,   to    Maintain — Subscription    —       J  '» 

Railroads,  Subscription  for   ... —       |^^ 

Railroads    Subscriptions    to    Build    1-1 

Reading— Neglect  to —       JJ^ 

Release   of   Subscriber    |-^ 

Belief— Party  did  not  Know  It  was  Loadod —       133 

Religious  Belief  and  Subscription   

Retraction   of   Offer    

Revenue  Stamps   on    

Revocation    of   Subscription    

San   Luis   Obispo— And   Sources   of    Enjoyment —       1-3 

Schools   to   Build — Subscriptions    |  ^ 

Several  to  Sign,  All  Must    —       1^ 

* '  Sign, ' '  Meaning  of   in    


121 
132 
132 


lOOS 


INDEX. 


CONTBACT— GE^TEKAL  NOTE— Continucrl.  No.  Pa^^ 

Signature  to   Contract    ^  i^ 

Signature   Includes   Mark    ^^^ 

Signature — Mark   is    —  j^^ 

Signature — Witness    to    ^^^ 

"Sources  of    Enjoyment''   by   Subscription    —  123 

Specified   Sums   Promised    H^ 

Stamps   on    ■'^^- 

Subject    Matter    of    Subscriptions —  US 

Subscriber — Conditions,  Held  to  His   —  119 

Subscriber — Death    of —  121 

Subscriber — Discharge     of     —  121 

Subscriber,    Insanity    of    —  121 

Subscriber — His  Liability   —  118 

Subscriber 's  Promise    —  119 

Subscriber — Release   of    —  121 

Subscription — Acceptance  of   118,  120 

Subscription — Action  on    —  119 

Subscription — Agreements    —  118 

Subscription — Assignment  of   —  121 

Subscription — Authority   to   Make    —  118 

Subscription  for  a  Ball  and  Dinner,  When  a  Charity  —  123 

Subscription,  ' '  Bell  Cow, ' '  Good    ~  119 

Subscription  to  Book   After  Publication  Thereof,.  —  125 

Subscription   to   Build,  and   Changes  in   Contract..  —  122 

Subscription — Building  Fund  to    —  121 

Subscription,  and  Change  of  Eeligious  Belief —  121 

Subscription  for  Charitable  Purposes    —  123 

Subscription — Church    to   Build—Subscriber   Would 
not  Pay  Unless  a  Member  was   not   Allowed   to 

Speak  in  it — Subscription  and  Costs  of  Suit  Paid  —  121 

Subscription — Church  Debt  to  Pay   —  119 

Subscription.  Compliance  with   —  IIS 

Subscription,   Conditional    —  118 

Subscription,  Conditions  Precedent  to   —  118 

Subscription — Negotiable   Instrument   as    —  121 

Subscription — Not    Accepted — What    —  120 

Subscription — Notice    of    Acceptance    —  120 

Subscription — Oral  Promise    —  122 

Subscription — Paper  and  Liability  of  Subscriber..  —  122 

Subscription — Promise    to   Pay    —  119 

Subscription — Promote    the    Blessings    of    the    Gos- 
pel, to   —  118 

Subscription   and  Public   Policy    —  118 

Subscription — Railroads,  as  to   —  121 

Subscription — Railroad    to   Build    —  124 

Subscription,    to   Repave   Highway    —  120 

Subscription   Revoked    —  121 

Subscription — Consideration   for    —  118 

Subscription — Consideration    for     —  119 

Subscription — Contingent —  118 

Subscription   as   Contract —  118 

Subscription    to    Corporation    and    Membership    of 

and  to  Form   • 12* 

Subscription — Delegates  to  Entertain —  123 

Subscription  Depending  on   Other  Subscriptions...  —  118 

Subscription — Dinner  to  Soldiers,  to  Give —  120 

Subscription — Entertaining     Body     and     Available 
Money 


INDEX.  1009 

CONTBACT— GEITOEAL  NOTE — Continned.  No.  Page. 

Subscriptiou  to  Erect  btrueture — Payments —       1-1 

Subscription   and   Expenditure  Fairly   within  It...  —       123 

Subscription  and  E.xpenditure  of  Money  on  Faith  of  —       121 

Subscription — Failure  of  Consideration  for —       119 

Subscription — General  Expenditures  on  Account  of  —       120 

Subscription  Gratuitous    113»  1"0 

Subscription — Horserace,  Premiums  to  Pay     —       119 

Subscription   Which   Lead   Others   to   Subscribe,   to 

"a  Bell  Cow" —       ^J^ 

Subscription — Liability  Incurred  on  Faith  of —       120 

Subscription— Liability,    When    Fixed    —       119 

Subscription — Like    Other    Promises    is —       120 

Subscription— Minister,  to  Support —       11^ 

Subscription— Misuse  of  Money  Subscribed 1-1 

Subscription — Money  Expended  on  Faith  of 1-0 

Subscription— Mutual   Obligations  of  Subscribers..  —       118 

Subscription — Stipulation    as    to    Notice .  1-0 

Subscription — Subscriber's    Amoant    Eecovered    m  ^ 

Action    • " 

Subscription  for  Support,  of  Something iii* 

Subscription— Time   of   Performance —       1-0 

Subscription— Verbal    Promise    to    Subscribe —       1-0 

Subscription— "We     Agree     to     Pay     the     Above  ^       ^^^ 

Amount"   "^ 

Subscription—' '  We    Each   Agree "    —       -^— 

Subscription    "We    Promise    to    Pay    the    Amount  ^         ^^ 

Set  Opposite " ^^^ 

Subscription— "We  Promise  to   Pay"    —       l— 

Subscription— "  We,    the    Subscribers,    Promise    to 

Pay" •••.••  ~~       ^^" 

Subscription,   When  Money  is  Expended  on  Faith  ^ 

of   "f. 

Subscription,  When  an  Offer   —       ^^^ 

Subscription  Work  Done  on  Faith  of 1-0 

Subscription— Work  Done — Payment  Corresponds..  —       121 

Subscription— Theaters,  to   Build    —       118 

Subscription— Time   of   Performance —       120 

Subscription   for   Woolen-mill,   to   Build —       118 

Subscription— Work  Done  on  Faith  of   —       120 

Supplemental  Agreement 1-^^ 

Support — Agreements  to    1|9 

"Usual  Covenants"   —       1;^! 

Valuable    Consideration 1|^1 

Verbal  Promise  to  Subscribe   —       120 

"We  agree  to  Pay"  and  Other  Forms  of  Promise.  —       122 

"When  a  Person  cannot  Write,"  Meaning  of —       l-'^2 

W' ithdrawal  of  Deposit —       1^2 

Withdrawal     of     Option —       1-^2 

Witness   to   Signature    ^^■;' 

Worthy  Extent  of   Entertainments —       l--i 

Written  Promise    131 

CONTRrBXJTION.     See   Decree   of  Distribution;    Order. 

Legatee  to  Devisee,  by   1004       593 

CONTROVERSY. 

Submission  of  Without  Action 1005       599 

New  Forms — 64 


1010  INDEX. 

C0E03SrEB.  No.  Page. 

Death— Certificate  of   182  147 

Death — Certificate  of   190  150 

Demand   for   Body    191  150 

Jury  of — Inquisition 183  148 

Oath    to    Jury     188  150 

Oath  to   Witness        189  150 

Services,   Certificate  of 192  150 

Statement    to    Supervisors    194  151 

Subpoena  of    184  148 

Subpoena    of    187  149 

Subpoena  of 193  151 

Summons  of    185  149 

Warrant  of    186  149 

COEPOEATIONS. 

Annual   Meeting — Notice    of    218  163 

Application  for  Change  of  Name 211  161 

Application  to  Dissolve   201  156 

Articles  of  Incorporation 195  151 

Articles    of    Incorporation 197  153 

Assessment  Notice    223  1651 

Assessment — Rescinded    Order     224  165 

Assessment — Waiver  of  Proceedings  Under 227  166 

Board   of    Directors — Continuance    of   Existence    Under 

Code 199  155 

Bond   of   Indemnity— Lost   Stock 228  166 

By-laws    232  168 

By-laws     232  171i 

By-laws,  Assent  to  Stockholders 233  172 

By-laws,  Certificate  to   234  173 

Business— Place  of,  Changed    207  159 

Certificate— By-laws,  to    233  172 

Certificate  of  Incorporation — General    195  151 

Certificate — Incorporation  of  Church   198  154 

Certificate — Incorporation    of    Eailroad    Company 197  153 

Certificate — Eeincorporation    196  153 

Certificate — Secretary's  on  Application  to  Dissolve 203  157 

Change  of   Name — Application  for    211  161 

Change  of  Name — Order   of  Publication  for 214  162 

Change  of  Name — Objections  to    215  162 

Change  of  Name — Order  for    216  163 

Change   of   Place   of   Business 206  158 

Codes — Continued  P^xistence  of,  Under   199  155 

Deed  by  203  203 


INDEX.  1011 

CORPORATION'S— Continned.  No.  Page. 

Dtlinqiicnt  Sale — Extending  Time  of  Sale 226  166 

Delinquent  Sale — Notice  of    225  165 

Disincoryjoration,  Decree  of    205  158 

Dissolution  of,  Application  for 201  156 

Dividend — Protest   of   Director   Against 231  167 

Existence  Continued  Under  Codes 199  155 

Existence  Continued  Under  Codes  by  Stockholders 200  156 

Final  Resolution   to  Change  Place  of  Business 210  160 

Lost   Stock — Bond   of   Indemnity 228  166 

Mortgage   by    427  310 

Notice    of    Annual    Meeting 217  163 

Notice  of  Annual  Meeting   218  163 

Notice   of    Annual    Meeting 219  164 

Notice    of   Annual    Meeting 220  164 

Notice  of  Application   to   Change   Name 212  162 

Notice  of  Application  to  Change  Name 213  162 

Notice  of  Application  to  Dissolve 204  158 

Notice   of   Assessment 223  165 

Notice  of  Change  of  Place  of  Business 209  160 

Notice   of  Delinquent  Sale 225  165 

Notice  of  Directors '  Meeting 222  165 

Notice  of  Special  Meeting  of   Stockholders 221  164 

Order  of  Publication  of  Notice  to  Dissolve 202  157 

Order    Rescinding    Assessment 224  165 

Power  of  Attorney — Transfer  of  Stock 229  167 

Proxy — Vote  to 230  167 

Proxy — Vote   to    469  333 

Sale — Delinquent — Time     Extended 266  166 

Stock    Lost — Bond    of    Indemnity 228  166 

Stockholders  Adopt   By-laws    233  172 

Stockholders'  Consent  to  Change  Place  of  Business....  208  160 

Stockholders  Continue  Existence  of  Under  Code 200  156 

Waiver  of  Further  Proceedings  Under  Assessment..,.  227  166 

GENERAL  NOTE: 

By-laws — When  Adopted   —  172 

Copied  in  a  Book —  172 

Directors — Number  of —  152 

Dividends — Protest  Against —  167 

Liability   of,   Director   as   to   Dividends —  167 

CORPORATION— ACKNOWLEDGMENT       OF      INSTRU- 
MENT  BY.     See    Acknowlodgnunt. 

Alaska  (No  Corporations  There)   

Arizona 2  3 

California    2  3 

California — Prisoner    5  4 


1012  INDEX. 

CORPORATION"— ACKNOWLEDGMENT       OF       INSTRU- 
MENT BY— Continued.  No.  Page. 

Colorado 25  34 

Idaho 3  ^ 

Montana 3  3 

Nevada 2  3 

New    Mexico 39  39 

North  Dakota 3  3 

Oregon    1587  961 

Prisoner — California   5  4 

South   Dakota 3  3 

Utah 43  41 

Washington 47  42 

Wyoming 48  43 

COSTS.     See  Affidavit. 

Memorandum  of 1006  599 

GENEEAL  NOTE. 

Bill   of —  600 

Filed   and   Served    —  600 

Service   of    —  600 

Taxed — May  be —  600 

Taxed — Notification  of —  600 

Verified  Bill —  600 

CREDITORS.     See  Affidavit;  Notice;  Order, 

Notice   to    1296  749 

Order   Establishing   Notice    to    1024  611 

CREDITOR'S  CLAIM.     See  Affidavit;  Notice;  Order. 

Action  Pending   1012  605 

Affidavit,   Claimant   of    587  408 

Affidavit,  Claimant  of,  No  Notice  of  Publication 1018  608 

Affidavit,    Claimant   of   Corporation — Partnership 586  407 

Affidavit,  Claimant  of— Had  No  Notice   588  409 

Attorney  to  Defend  Action,  .Judge  Appoints 1010  604 

Claimant    cannot    be    Found — Allowed 1017  607 

Contingent 1008  602 

Executor  by 1009  602 

Judgments   1013  605 

Lost   Instrument    1015  606 

Lost    Promissory    Note 1014  606 

Mortgage    1007  600 

No   Notice   to   Creditors— Affidavit   of   Claimant 1018  608 

Notary,    Certificate    of 1021  609 

Notary,   Presentation   by — Certificate    1022  610 

Not   Due 1011  604 

Presented,  Statement  of    1023  610 


INDEX  1013 

CEEDITOE'S    CLAIM— Continued.  No.     Page. 


Judgement  not  Warranted  by  Law  or  Fact,  may  be 

Shown 

Justly   Due,   must   be .[    ' 

Lien — Claim  Secured  by. 


609 
608 
607 


Ueferee,   Etport  of 1020 

Eef erenee  of  1Q29 

Vouchers,  Demand  for,  Executor  by 1016 

GENEIiAL  NOTE: 

Administrator's    Claim t;u2 

Administrator's  ludursement  on (joi 

Aduumstralur    to    i'ay   Costs   ol    Suit tju7 

Administrator    Sues    Estate 0u3 

Affidavit  of   Loss   of   Instrument GDI 

Agent   of   Ciaiiuaut   i'reseutiug tjijl 

Certificate  by  Notary  of  Presentation —  Oul 

Claim   liejected   and   (;osts t^^jj 

Claim    Withdrawn   and   Copy   Substituted —  GiJl 

Contingent  Claims (jOl 

Copy  of  Eutry  of  Judgment  Presented —  605 

Copy   of  Instrument   Base   of   Claims   to   be   Filed, 

^'^  iieii —  601 

Co[)y   of   may   be   Filed 6(31 

Copy  of  Note,  Bill,  etc.,   to  Accompany   Claim....  —  601 

Demand   for   Proofs        607 

Escheated   Claims gijS 

Executor's  Claims 601 

Executor 's  Indorsement  on 601 

Executor  to   Pay   Costs   of  Suit 607 

Executor   Sues   Estate 603 

Piled,  to  be,  When 601 

Indorsement  of  Approval  by  Judge  of  the  Court..         601 

Instrument   Lost — Copy   Presented 601 

Judge    Appoints    Attorney    to    Oopose    Executor's 

Claim    \ _  go3 

Judgment  Against  Decedent  must  be  Presented 605 

Judgments   Establishing  Claims   Only  Prima  Facie 

Evidence 

Judgment   must  be   Presented 


603 
605 


603 
601 
601 


601 
601 
601 
601 
601 
607 


Mortgage  Claim  Secured  by  601 

Neglect  to   .Approve  Becomes  Reieotion,  Wlion        , 

Notary — Presentation  by 

Not   Due   When   Presented .........! 

Note,  Bill,  etc.,  must  be  Exhibited  if  Demanded" ' 

Presented,  When 

Proofs  of  May  be  Demanded ......'.' 

Reference  of  Claim  had  in  the  Court  in  Charo-e  of 

Estate.  ^  __       gQ3 

Register  of  Claims    -q^ 

Rejection    of,    by    Administrator 

Rejection  of.  After  Lapse  of  Time  for  Presentation         - 

Rejection   of,  by  Executor   

Rejection    of,    by   Judge .'..'.'. '. 

Return  by  Executor  of  Claims  Presented!!! 

Suit  vs.   Estate  by  Executor  or   Administrator""         '. 

Verification  of 

Vouchers  to  Accompany [ 

Vouchers  to  be  Produced 


601 
601 
601 
601 
611 
603 
601 
601 
607 


1014  INDEX. 

CRIMINAL  COMPLAINT.     See  Justice's  Court.  1  -i.  Pagfe. 
DECLARATION    OF    HOMESTEAD.     See    Affidavit;     Ap- 
praisement; Decree;  Homestead;  Order. 

DECKEE.     See  Judgment. 

Account,  Settlement , 102.5  612 

Account,   Settlement   and    Distribution 1026  613 

Creditors,   Notice    to,   Shown " 102-4  611 

Discharge,    Final 1032  619 

Disincorporation  of   20.5  158 

Distribution 1027  614 

Distribution,  Foreign  Executor  to    1U28  616 

Distribution,   Settlement   on    1029  616 

Divorce — Homestead  in    288  229 

Divorce — Homestead  in 289  225 

Divorce— Homestead  in   291  230 

Divorce— Homestead  in 292  230 

Exempt   Property   Set    Apart — Court's    Motion 1030  617 

Foreclosure 1033  620 

Heirship  of  Deceased  Intestate,  Establishing 1035  623 

Heirship,  Testate  to,  Establishing 1034  622 

Homestead  Set  Apart 1031  618 

Order    Establishing    Notice    to    Creditors 1024  611 

Partition  of   1036  623 

Sole   Trader 1037  624 

DEED— GEANT-^CONVEYANGE. 

Administrator  or  Executor  by    236  192 

Bargain  and  Sale 261  214 

Bargain  and   Sale    238  194 

Bargain  and  Sale 239  194 

Corporation,  by 249  203 

Foreclosure — Sheriff  'son 255  208 

Gift  of   243  199 

Grants,  Statute  Form   235  174 

Guardian 's    244  199 

Husband   and   Wife   of    245  200 

Mining  Claim,  of   246  201 

Mining  Company   to   Incorporate    247  201 

Mining  Company   to   Incorporate    248  202 

Name,  Former  of.  Grantor 1591  963 

Name,   Former   of.    Grantor    1592  963 

Notice  of  Sale  Under  Trust   263  215 

Quitclaim   250  204 

Quitclaim 251  205 

Quitclaim    252  205 

Keconveyance  Under  Trust  Dc  ed 242  198 


INDEX.  1015 

DEED— GRANT— COI'rVTYANCE — Continued.  No.  Page. 

Right  of  Wiiy   2o3  'J.09 

Simple   Form    237  193 

Sheriff's   on   Foreclosure    255  20S 

Sheriff 's   on   Execution    254  206 

Tax    2oG  209 

Trust    of     --10  19.'> 

Trust    of 241  197 

Trust,   Reconveyance,   Under    242  19S 

Trustee 's  Sale,  Notice 263  215 

Warranty   259  213 

Warranty  With  Covenants 260  213 

Warranty    With    Code,    Civil    262  215 

Warranty — Grantor,  Against 257  211 

Warranty — Grantor,   Against    258  212 

GENERAL  JSIUTE: 

Absolute  Delivery  of   —  173 

Acceptance — Cannot   be   Without   Delivery —  183 

Acceptance  of,  Shown  by  Facts   —  183 

Acknowledgment   and   Signing   of    as    Evidence    of 

Delivery    —  183 

Acknowledgment  not  Presumed  by  Delivery —  182 

Acknowledgment    of    Payment    of    Consideration — 

Contradicted  by  Grantor   —  ISO 

Action  to   Recover  Coasideration  for —  ISO 

Actions  to  Recover  Debts  Secured  by  Trust  Deed.  —  190 
Adverse   Title — Party   Claiming  Under,   and   Deliv- 
ery of   —  181 

After-acquired  Title    —  lS<i 

After-acquired  Title  and  Quitclaim   —  177 

After-acquired    Title — Attempt     to     Hide     It     and 

Courts  of  Equity —  IS'5 

After-acquired   Title — "Grant,   Bargain   and   Sell" 

and  Warranty  of  Title  —  1S6 

Agent,  Delivery  to    —  173 

Agreement     to     Convey    Land     When     the     Owner 

"Could  Make  a  Deed"  is  Binding   —  109 

Alienation — Restraint  of   —  187 

Ambiguity  of    —  1 '  S 

Appurtenances  Pass  by  Use  of  the  Word  "Grant"  —  186 

Appurtenances,  What  are —  186 

Appurtenances — Water  Right  as   —  186 

Assent   to   Delivery   183 

Assignment   of    —  190 

Attorney  in  Fact — A  Grantor  Must  Sign  Twice.  ...  —  179 

Attorneys  at  Law  and  Short  Deeds   —  194 

Authenticated  C^py  of  as  Proof  of  Delivery —  181 

Bank  Checks  and  Sales  Under  Trust  Deeds —  191 

Bargain  and  Sale  and  Future  Estates —  178 

Beneficiary    Under    Trust    Deed    may    Purchase    at 

Sale  Under —  191 

«'Bin   of   Sale"— What   is    —  173 

"Blind"— "Sham,"  and  Courts  of  Equity —  186 

Bondholder   Under   Trust    Need   not    Demand    Pay- 
ment Before  Suit —  191 


1016  INDEX. 

DEED— GRANT— CONVEYANCE— GENTTRAL  NOTE— 

Continued.  No.  Page. 
Bondholder — Trust  Deed  and  His  Right  to  Sue  to 

Foreclose  Trust  Deed    —  191 

Book  of  Forms  Without  Seals  to  Dee'ds  an  Experi- 
ment      —  179 

Breach  of  Conditions   187, 188 

Breach  of  Covenant  and  Appurtenances —  187 

California  Codes  and  Trust  Deeds —  192 

California  Conveyances  and  the  Days  of  Noah...  —  179 

California  Lawyers  (Some)  and  Seals  to  Deeds....  —  178 

California — Seal   Unnecessary   in    —  178 

Calls  of  Deed — Possession  Under   —  178 

Canceling 173, 182 

Canceled   When   Fraud    is   Established 183 

Canceled  by  Parent  When  Her  Son's  Verbal  Prom- 
ise of  Support  Was  Consideration  for —  180 

Capability  of  Grantors  —  178 

Certificate  of  Purchase  of  Public  Lands  and  Quit- 
claim     —  177 

Cheeks  on  Banks  and  Purchaser  Under  Trust  Deed 

Sale   —  191 

Circumstances  of  the  Transaction —  177 

Circumstances    Under    Which    the    Instrument    was 

Made   —  177 

Civil    Law,    Under    —  179 

Claims    Against    Estates    of    Decedents    and    Trust 

Deeds    —  190 

Clause — Habendum    —  185 

Commencement  of  Estate  in  Future —  178 

Color   of   Title   Under    —  183 

Condition  Subsequent  Which  is  Unlawful —  188 

Conditions  and  the  Word   "Provided" —  '187 

Conditions— Grantor    Prevents    Compliance    with — 

Gi>od  Excuse,  is —  187 

Conditions  not  Regarded*  With  Favor  by  Courts..  —  187 
Condition   not   to   Convey   Without   Grantor's   Con- 
sent     —  187 

Condition  not  Complied  With  Voids  Grant —  187 

Conditions  Precedent  may  be   Good    —  187 

Consideration  Recited  does  not  Waive  Fraud —  183 

Condition  Subsequent —  187 

Condition  Subsequent  and  Time  Limit   —  188 

Condition  Subsequent  and  Title    —  188 

Confirmation  of  Void  Deed  —  183 

Conflicting  Descriptions —  176 

Conflicting  Descriptions — Of   Map   and   Survey....  —  178 

Conflicting  Parts  Controlled  by  First  Part —  187 

Conflicting  Words  of  Grant  and  Habendum  Clause  —  185 

Consideration   Expressed   and   Adverse   Claimants..  —  180 

Consideration   Expressed   is   Prima  Facie   True....  —  180 

Consideration  Explained    —  180 

Consideration — Good      Consideration — A      Valuable 

One    —  180 

Consideration    may    be    Shown    —  180 

Consideration  Need  not  be  Expressed  in —  180 

Consideration— Presumed   by    —  180 

Construction  Favors  Grantor,  When   —  184 


INDEX.  1017 

DEED— GBANT— CONVEYANCE— GENERAL  NOTE— 

C!ontinued.  No.  Page. 

Construction  of  Deeds   —  184 

Construction  in  Case  of  Conflicting  Parts —  187 

Construction — General    Rules   for    —  18.3 

Constructive  Delivery —  173 

Constructive  Delivery —  182 

Construed  as  an  Entire  Instrument —  183 

Contingency — Delivery    Depending   upon    —  181 

Contract,  Broken,  Based  on,  Redelivery —  182 

Contracts    to    Execute     —  189 

C-ontract  to  Execute  One  Good  and  Sufficient —  188 

Contract  to  Purchase  Passes  Under  Grant —  185 

Contract  to  Sell — Installment  Plan  and  Contract  to 

Make  Good  and  Sufficient  Deed    —  IRf) 

Controlling  Description    —  \7^ 

Conveyance  When  Owner  Signed  Wrong  Names  to  —  179 

Conveyance   by   Partner    —  179 

Conveyance   is   "Fed"  by  Title   After  Acquired..  —  178 

"Conveyance,"   What   is    —  173 

Copy  of  Record  of.  Presumes  Delivery  of —  181 

Courses  and  Boundaries   —  176 

Courts — Difficult,   Sometimes,   to   Understand —  184 

Court  Orders,  Life  Estate  to  be  Convej-ed    —  178 

Courts  of  Equity  and  Future  Estates    —  178 

Courts   Favor   Grantee,   Frequently    —  184 

Courts    of    Equity — After-acquired    Title    and    At- 
tempts  to   Hide   It    —  186 

Covenant  Against  Encumbrances    —  188 

Covenant — Breach    of    and    Appurtenances —  187 

Covenants   and   Title    Under    —  189 

Creditors — Homesteads  and  Trust  Deeds    —  190 

Creditors  of  Grantor  and  Trust  Deeds —  190 

Dead  Man's  Papers — Found  Among,  is   —  181 

Death— Delivery    After    —  181 

Death — Delivery  to  be  Made  After   —  181 

Death — Delivered   at  Moment   of    —  183 

Death  of  Grantor  and  Trust  Deed 180,  181 

Debt  Secured,   Action   to  Recover  It — Trust  Deeds 

and  a  Rule  of  Law   —  190 

Deed  and  Defeasance  Executed  at  Different  Times  —  188 

Deed   Assigned    —  190 

Deeds  Construed  as  a  Whole  Writing    —  18.5 

"Deeds,"    "Grants,"    "Conveyances,"    Take    Ef- 
fect, When   —  173 

"Deed"   Includes   Mortgage    —  17.t 

Deeds,  Quitclaim    176.  177 

Deed — Simple    Form — Effectual    —  194 

Deeds — Trust,   and   Right   of   Possession    —  190 

Deceit   Affecting   Delivery    —  181 

Default  Under  Trust    —  191 

Defeasance  and  Deed  Read  as  One  Instrument....  —  188 

Defeasance  and  Deed  Executed  at  Different  Times  —  188 

Definitions   of   Words — Technical    —  184 

Delivery   —  173 

Delivery   a   Question   of   Tact —  ISO 

Delivery  and  Absconding  Grantee   —  181 

Delivery   and   Life    Estate   After —  181 

Delivery  and  Request  not  to   Record   Until —  181 


1018  INDEX. 

DEED— GRANT— CONVEYANCE— GENERAL  NOTE— 

Continued.  No,  Page. 

Delivery  and   Then    Dcstniction   of    —  182 

Delivery  Affected  by  PVaud  or  Deceit   —  181 

Delivery  After  Death  When  Good   —  181 

Delivery — After  It   Comes   to   Grantor's  Possession  —  181 

Delivery  at   Moment   of   Grantor's   Death —  183 

Delivery   Conditional    —  182 

Delivery   Constructive    —  182 

Delivery — Conveyance   Pound   Among   Dead   Man 's 

Papers    —  182 

Delivery  Coupled    With  Signing    and  Acknowledg- 
ment      —  182 

Delivery    Depending    Upon    Contingency —  181 

Delivery — Destruction  of,  After   —  180 

Delivery — Evidence  of   —  181 

Delivery— Grantor   Must  Intend   to   Part   With   Its 

Possession    —  182 

Delivery  in  Escrow 173, 182 

Delivery — Intent    Governs     —  181 

Delivery  not  Presumed  by  Acknowledgment  of....  —  182 

Delivery  not  Made — No   Acceptance  of —  183 

Delivery  not  Presumed  by  the  Fact  of  Signing....  —  182 

Delivery  not  Always  Conclusive  as  to   Title —  181 

Delivery  of — Complete,  When   —  180 

Delivery  of — Title   Passes  on    —  180 

Delivery   of    Trust   Deed    —  190 

Delivery  Proved  by  Use  of,  as  Evidence    —  182 

Delivery  Presumed  at  Date  to   have   been   Made..  —  181 

Delivery  to   One   of   Two   Grantees    —  181 

Delivery   to   be    Made   After   Death    —  181 

Delivery  to  Strangers  to  Title    —  173 

Delivery   to   Third   Person    —  183 

Delivery  Under  Trustee 's  Sale    —  191 

Delivery  With  Instructions  to  Hold  Until —  181 

Delivery   With   Eeservations    —  181 

Deposited  With  Third  Person   —  173 

Description    by   Blocks    —  176 

Descriptions — Conflicting   Lines    —  171 

Description  Defective  Caused  by  Evidence —  177 

Description  by  League    —  175 

Description   by   Map   and  Latitude    —  176 

Description  by  Metes  and  Bounds   —  175 

Description  by  Monuments —  176 

Description  by  Name   174,  175 

Description  by  Name  of  Place    —  175 

Description  by  Number   —  175 

Description   by  Street    —  175 

Description   by   Reference    to   Deed    or   Map —  176 

Description  by  Subdivision    —  176 

Description   by   Survey    177,  178 

Descriptions,   Certain,  Void    —  177 

Description  Favorable  to  Grantee    —  176 

Description   False    —  177 

Destruction    After   Delivery,    of    —  180 

Destruction  After  Delivery,  of   —  182 

Description  of  Property  in    —  175 

Description — Part  False   and  Part   True    —  177 

Descriptions   Repugnant    —  176 

Doubt  of  Meaning  and  Parol  Evidence —  185 


IXDEX. 


1019 


DEED  GRANT— CONVEYANCE— GENEHAL   NOTE  — 

Continiifd.  No. 

Drunken    ^hin  's     — 

Effect   of   \Vbon    Dplivored    — 

Encumbrancp   as   a   Lion    — 

Encumbrance,  What  is   — 

Enc.umbrancprs,    Covenant    Agninst    — 

Enforcement    of    Trust    Deed     — 

Equity  Courts   ;in<l   Future   Estates    — 

Equitable  Title  and  Uncertainty    — 

Escrow    and    Subsequent    Grantee    — 

Escrow  Deed  Carries  All  Grantor  's  Title — 

Escrow,    Delivery    in    — 

Escrow,   Delivery   in    — 

Escrow  in,  Only  Lacks  Delivery  to  Give  It  Vitality         — 
Escrow  in,  M.U3t  be  to  Person  not  a   Pfirty  to  Tt..  — 

Escrow  in.  Must  not  be  Controlled   by, Maker    ....  — 

Escrow    of,    Under    Contract    to    Support    Grantor 

During    Life    — 

Escrow,    What    is    — 

Established    Fraud    and    — 

Estate    Described    and    "Grant"    — 

Estates — Future    and     — 

Estate  Limited — Habendum  Clause    — 

Estate  of  Deceased  Persons — Trust  Deed  and   Pre- 
sentation   of    Claim     — 

Estoppel  if  Consideration  is  Expressed  in — 

Evidence    Aliunde    and     — 

Evidence  as  to  Intention  to  Deliver — 

Evidence    as — Party   Offering    Estopped   from    Dis- 
puting  Delivery    

Evidence    Contradicting    Consideration      Must      be 

Clear   

Evidence  of   Delivery    

Evidence   of   Circumstances    

Evidence,  Parol,  When  Admitted   

Executed  Passes  After-acquired  Title   

Execution    of    

Exceptions  in  Grants   

Excuse    for   Nonperformance    of   Conditions    

Expressed  Consideration  Binding  on  Grantor 

Facts   Recited   in   Deeds   Conclusive    

False   Name   Signed   to   by   True   Owner 

Fee   Simple  Title  and   Omission   of   Words 

Fee  Simple   Title  Presumed   to  be  Conveyed 

Fictitious   Name   of   Grantee    

Fictitious   Name   Signed   by   Owner   Passes   Title.. 

Foreclosure    Under    Trust    Deeds    

Forfeiture  Because  of  Breach   of  Conditions 

Forfeiture    Conditions    Strictly    Construed 

Forfeitures  not  Favored    

Forfeitures — Right    Given    by    Statute     the     Only 

Reriedy    

Form  for  Signing    

Found  Among  Dead  Man 's  Papers    

Fraud  and  Deceit  Affecting  Delivery 

Frauil  Charged — Consideration   may   be   Shown.... 

Fraud  Established 

Fraud  in    

Freehold  to  Commence  in  the  Future   


Page. 
ISl 
180 
l^S 
17* 
18S 
100 
178 

18.-; 

1S2 
1S2 
1S2 
17S 
1S2 
182 
182 

183 
17.3 
18.3 
184 
17S 
185 

190 
180 
183  f 

1S2 


—  182 

—  180 

—  182 

—  18-t 

—  18.> 

—  178 

—  175 

—  187 

—  187 

—  180 

—  188 

—  179 

—  184 

—  184 

—  179 

—  179 

—  191 

—  187 

—  188 

—  188 

—  188 

—  178 

—  182 

—  181 

—  180 

—  183 

—  183 

—  178 


1020 


INDEX. 


DEED— GRANT— COTTVirrANCE— GENERAL     NOTE— 

Continued.  No.  Pajje. 

Fntiire   Estates —  17S 

General   Rules  of   Construction    —  183 

General  Intention  as  Expressed   in —  184 

Gift— Parent    to    Child    —  180 

"Grant,  Bargain  and  Sell"  and  Conflicting  Haben- 
dum      —  185 

Gift    of — Consideration    may   be   ShowTi —  180 

"Grant,  Bargain,  Sell  and  Convey" — Operation  of  —  184 
Grant    Construed   by   Words    "Uses    and    Purposes 

Aforesaid"    —  18.5 

Grants    Construed   in    Favor    of    Grantor —  184 

"Grant,"        "Deed,"        "Conveyance,"        "Quit- 
claim"— Same   General   Meaning —  178 

'•Grant"— Effect    of   the    Word —  184 

Grants,   Exceptions  in    —  187 

"Grant"  is  "Fed"  by  Title  Afterward   Acquired  —  178 

' '  Grant, ' '  Meaning  of    —  174 

Grant     of     Land — Leaves     Fee     Simple     Title     in 

jrantor — "When 187 

Grants — Reservation    in —  187 

"Grant"   Used   in   a   Writing   Passes   Present   and 

Subsequent    Title 1 78 

' ' Grant, ' '  What  is —  173 

"Grant"    and    "Appurtenances"    Construed —  186 

Grantee  Absconding  and   Taking  Deed — Xo   Deliv- 
ery    —  181 

Grantors — All    not    Signing —  179 

Grantee   and   Escrowed   Grant 182 

Grantee    Favored    by    Courts 176  184 

Grantee's    Name    Inserted    After    Making —  '  179 

Grantee  Takes  all   Interest  of   Grantor — V\'hen —  185 

Grantee 's    Rights   when    Void 183 

Grantee   without   Notice   of  Defeasance —  188 

Granting  Clause  as  to  Intention    —  183 

Grantor  Drunk   to   "Ignorance" — Thought   It   was 

a   Letter — Void    181 

Grantor  and  Grantee  must  Both  Intend  Delivery..  —  181 
Grantor  Attorney  in  Fact  for  Other  Grantor  Must 

Sign   Twice    —  179 

Grantor  Bound  by  Mistake  of  Law   —  180 

Grantor 's — Capability    of    —  178 

Grantor  Knew  He  was  ' '  Doing  Something  When  He 

Signed   His   Name,"   not   Void —  181 

Grantor's  Note  and  Trust  Deed   —  191 

Grantor   Unable    to    Write    —  179 

Guiding  Hand  of  Maker —  179 

Habendum   Clause   in —  183 

Hand    of    Grantor    Guided —  179 

Habendum  Clause  and  Words  of  Grant  Conflicting  —  185 

Heirs,    Meaning   of —  184 

Identity     of    Names,    Identity     of     Persons — John 

Smith    to    John    Smith — Quitclaim —  179 

Identity  of  Grantor  or  Grantee —  179 

Identity   of    Question    of    Fact —  179 

Ignorance   of    Contents    no    Excuse,    When —  181 

Inheritance — Words  of  Omitted —  184 

Installment   Sales    —  189 


INDEX.  1021 

DEED— G"RANT—C?ONVEYANCrB— GENERAL  NOTE— 

Ckjntiuued.  No.     Page. 

Intent  of  Convoyance  Governs   —  183 

Intention  of  Parties  to 188,  181,  182,  183 

Intention  to  Deliver  and  Contingencies — _  181 

Interests  that  Pass  by  Grant    l*''^.  18<5 

Interests  of  Those  Sifting  Pass  by   —  179 

Interpretation  of  Grants   1°^ 

Immediate   Delivery    1'-^ 

Impossible  Conditions  not  Binding   188 

Irreeoncilable  Parts  of  Deed    18^ 

John  Smith  to  John  Smith   —  179 

Judgment   Canceling    183 

Judicial  Notice  of  Situation  of  Lard    —  185 

Land — Judicial  Notice  of  Its  Situation    —  185 

Latent    Ambiguitv    1'' 

Law— Civil.   Under    —  179 

Law— "Subtle    and    Unsubstantial"    —  185 

Legal  Mistakes  Bind  Grantor    —  183 

Legal  Title  and  Trust  Deeds    —  190 

Liens — Encumbrance    1'* 

Lien  of  Tax  Encumbrance    —  188 

Life   Estate   after  Delivery    —  181 

Life  Estate  Conveyed  by  Order  of  Court    —  1^8 

Life   Estates   Under    —  ^78 

Life   Estate   Passes   When    —  185 

Limited  Interest  Passing  to  Grantee —  18o 

Lost  Deeds   and  Courts  of  Equity    —  189 

Map  and  Latitude  in  Description   —  17fi 

Map  and  Survey — Conflicting —  178 

Maxims  of  Law  as  to  Descriptions   —  176 

Mining  "Claims  and  Appurtenances,"  of   —  186 

Meaning  of  Words  and  Phrases  Used  by  Courts.  ...  —  184- 

Meaning  of  Words — Technical   —  184 

*'Metes"    and    "Bounds,"    Described —  175 

Mining  Corporations  and  Deeds   204 

Mistakes  in  Deeds    177,  183 

Mistake  in  Parol  E%ndence   as  to    —  183 

Mistake   of  Law  Binds  Parties    —  183 

Monuments — Identification  by   —  177 

Mortgages  and  '•  rust  Deeds 190 

Mortgage — Trust  Deed  as   —  190 

Name  in  Body  of,  True,  but  Signature  False —  179 

Name— No    Deer,    Without    —  179 

Name  or  Number  by   ^l^ 

Name  Signed  to  by  Looker-on   —  1'9 

jfotices — Judicial,    Taken    of    Location    of    Lands 


when 


185 


Notice  of  Sale  Under  Trust  Deed   —  191 

Nonperformance  of  Condition  Subsequent   —  188 

Notice   of   Defeasance    188 

Xotary — Deed   Left   with    —  183 

Obligation  of  Grantor  Respecting  Taxes —  188 

Obtaining  Possession  of  by  Trickery   —  181 

Official   Map — Its   Value    —  1"8 

Operative  and  Conflicting  Words   —  189 

Operative   Words    —  185 

Parol  Evidence  as  to  Fraud  in   —  183 


Hr=2  INDEX. 

DEED— GRANT-  CONVEYANCE— GENERAL  NOTE— 

Continued.  No.     Page. 

Parol  Evidence  as  to  Consideration  for   —  ^^^ 

Parol  Evidence  in  Case  of  Doubt   —  ^^^ 

Parol  Evidence  of  Grantor 's  Intention —  187 

Parties  to,  Identity  of   —  1 '  ^ 

Parties — Situation  of   —  18i 

Partner   by    ^^^ 

Patent   Ambiguity  in  Deed    —  ^^' 

Payment  for  Contradicted — May  be   —  180 

Possession,  of  and  Trust  Deed    —  190 

Possession  Taken  by  False  Representations    —  181 

Possession  of  is  Presumption  of  Delivery —  181 

Possession  Under  Calls  of  Deed —  1'8 

Precedent  Conditions — Nonperformance  of —  188 

Precedence  in  "Quitclaim"  and  "Grant" —  177 

Premises  and  Habendum  Clauses,  When  Conflicting  —  185 

Presumed  Deliv  ^ry,  is    —  173 

Presumption  as  to  Consideration,  Recital  of —  180 

Presumption  as  to  Consideration  and  Real —  180 

Presumption  as   to   Grants    ' —  190 

Presumption  as  to  Title  Conveyed   —  184 

Presumption  of  Delivery  at  Date  of   —  181 

Presumption  of  Law  as  to —  184 

Presumption  of  Payment  of  Consideration —  180 

Presumptions  when  the  Word  "Grant"  is  Used...  —  184 

Prevailing  Part  of  in  First  Part — When —  187 

Private  Persons  and  Public  Grants   —  184 

Promise  of  Support  for  Consideration  of —  180 

"Provided,"    Frequently    Used    Expresses    Condi- 
tions    —       187 

Public  Lands  and  Quitclaim    —  177 

Public  Grants  Construed  to  Favor  Grantor —       184 

Quantity,  Described  in —       175 

Quantity,  Stated  in  —       175 

Quitclaim   and   After-acquired   Title    —       177 

Quitclaim  and  Public  Lands    —       177 

"Quitclaim"    Construed     —  177 

Quitclaim  Deeds    176,  177 

Quitclaim — Man    to    Wife —       177 

"Quitclaim"  Used  in   \Vriting,  Passes  Present  Title 

but    not    Subsequent    Title    —       178 

"Quitclaim,"    What   Passes   by    —       177 

Real  Consideration  for  may  be  Shown —       180 

Recitals  of  Consideration  in  does  not  Excuse  Fraud  —       18.3 

Recitals  in   Deeds    —       18^ 

Recitals  in  Deeds  of  Nonessential  Facts —       188 

Recitals  in  Trust  Deed   —       191 

Reconveyance  after  Satisfaction  of  Debt  Secured  by 

Trust  'Deed    —       191 

Reconvey — Agreement   to    —       183 

Reconveyance    Because    Conditions    not    Complied 

with —       187 

Recording  of  Evidence  of  Delivery,  when   —       182 

Recording    of — Has    no    Effect    upon    Validity    of 

Grant —       181 

Recording   of   when   Obtained   by   Fraud — Availeth 
Naught   


—       181 


INDEX.  1023 

DEED- OR  ANT— CONVEY ANCTE—GENITBAL  NOTE.— 

Continued.  No.  Pa^e. 

Redelivery    of    173,  182 

Bedelivcry  of  when  Escrow   Contract  is  Broken..  —  l''-^ 

Redemption  Under  Trust  Deed  Sale   —  192 

Referred   to   in   Will    —  1^1 

Rejected,  Repugnant  Matter  will  be —  ^^^ 

Release — Words   Necessary   to   Effect    —  l^'* 

Repugnant — Matter —  1*^ 

"Right,      Title      and      Interest"— Warranty      and 

After-aequired  Title    —  1^ 

Request,  Signature  to,  by   1 '^ 

Reservations  and  Delivery  of 1°1 

Reservations   and    Exceptions    18* 

Reservations  in  Grants 1^^ 

Rules — Arbitrary  Applied    l""* 

Rules  of  Construction   Applied    —  184 

Rule  of  Law  and   Personal  Action  to  Recover  Se- 
cured Debt    —  190 

Rule  of  Property   —  19^^ 

Revesting  Title   by  Destruction   of    —  182 

.           Revocation   A  f ter  Eserow  cannot  be    —  182 

Revocation   Before   Being  Put   in   Escrow    —  182 

Revocation  by  Death  of  Grantor  and  Trust  Deed..  —  190 
Sale   by   Stockholders   of   a  Bank,   Trustees   Under 

Trust  Deed,  to  Their  Bank  Valid   —  1^1 

Sales — Installment   Plan,   on    —  189 

Sales — Several  Payments  to  be   —  189 

Seals  to  Deeds,  etc.,  California  Lawyers —  1"8 

Seal  in  California,  Practice —  194 

Seeuritv    Exhausted    Prior    to    Action    to    Roeover 

Debt' -  190 

Situation  of  Parties    •_ —  184 

Signing  and  Acknowledgment  of  Some  Evidence  of 

Delivery    18-^ 

Signing  for  Another  Person   —  1^9 

Signing  not  Presumption  of  Delivery   —  182 

Signature  to  by  Request   lj|_9 

Signature  to — Guiding  Hand  of  Maker —  1"9 

Signature   to    1^8 

Statute  of  Uses    —  1^8 

Statutory  Remedy  for  Breach —  18S 

Subsequent  Advances  Under  Trust  Deeds   —  191 

Subject  Land — Object  Deed — Result  Grant —  178 

Subtle  and  Unsnbtantial  Law   —  185 

Surplusage  in  Deeds  and  Attorneys  at  Law —  195 

Surplus  of  Property  Intended  to  be  Conveyed   ....  —  183 

Surrounding  Facts' Considered   When   Construing..  —  184 

Survey  and  Map  Conflicting   —  1"8 

Taxes,  a  Personal  Obligation,  as  Encumbrance....  —  18S 

Tax — Encumbrance    and    Subsequent    Grantees....  174  188 

Technical  and  Arbitrary  Rules    —  185 

Technical   Definitions    —  184 

Technical  Rules  of  Construction   —  184 

Title — After-acquired   —  186 

Title  Adverse — Party  Claiming  Under  and  Delivery  —  181 

Title  and  Trust  Deeds   —  190 

Title  Devested  by  Deliver^'  of —  180 


1024  INDEX. 

DEED— <niANT— CONVirZANCE— GENEEAL     NOTE— 

Continued.  No.  Page. 

Title  not  Revested  by  Destmction  of —  182 

Title  Subsequently  Acquired    —  171 

Title  Passes  Under  Fictitious  Name 179,  180 

Transfer — How  ^vfade   —  174 

Transfer — How  Made   —  173 

Transfer  of  Title  and  Trust  Deeds   —  190 

"Transfer,"   What   is    —  173 

Transferring    Title    —  173 

Trust    Deed    a    Mortgage    with    Power    to    Convey 

Title    —  190 

Trust  Deed — Beneficiary  and  Sale  Under  Deed....  —  191 
Trust  Deed — Dutv  of  Trustee  to  Reconvey  on  Pay- 
ment     '. —  191 

Trust  Deeds   and   California   Codes    —  192 

Trust  Deed  and  Death  of  Grantor —  190 

Trust  Deed— Default  Under   —  191 

Trust  Deeds — Recitals  in —  191 

Trust  Deed  and  Delivery  by  Grantor —  190 

Trust  Deeds   and   Foreclosure   of    —  191 

Trust  Deeds — Mortgages  and  Doubts  in  Construing  —  -190 

Trust  Deed  and  Redemption  After  Sale    —  191 

Trust  Deeds  and  Right  of  Possession   —  190 

Trust  Deeds  and  Sham  Sales  Under   —  191 

Trust  Deed  and  Surplus  After  Sale   —  191 

Trust  Deed  and  Subsequent  Advances —  191 

Trust   Deeds   and   Words   Used   to   Create    —  190 

Trust  Deed — Sales  and  Payment  by  Check —  190 

Trist  Deed — Sale  Under  and  Delivery   —  191 

Trust  Deed — Stockholders  in  a  Bank  and  Trustees 

Under  Deed  may  Sell  to  Bank   —  191 

Trust  Deed  Strictly  Construed    —  191 

Trust  Deed,  What  is  —  191 

Uncertain    Instruments    Construed    by    Habendum 

Clause    —  """" 

Under   Civil   Law    —  179 

Unlawful    Conditions    Subsequent    —  i  --^ 

Unsubstantial   and  Subtle  Law   —  185 

"Use"  and  "Trust,"  and  Habendum  Clause —  18.5 

"Uses  and  Purposes   Aforesaid"   Govern  Grants.,  —  185 

Valid,  to  be.  Title  Must  Vest  for  All  Time —  181 

Validity   of   Deed    —  190 

Valuable   Consideration    —  180 

Verbal    Promise    to    Support  Mother    no  Considera- 
tion  for    —  180 

Verbal  Promises  of  Support  as  a  Consideration  for  —  ISO 

Voidable  When  —  181 

Void  Clause  in  Deed  Because  It  was  in  Restraint 

of  Alienation —  187 

Void  Deeds  and  Grantee 's  Rights —  183 

Void   Deed    Confirmed    —  183 

Void  Description    —  177 

Void  Estates  Under —  178 

Void  if  Conditions  are  not  Complied  with —  183 

Void,  Grant  is  if  Condition  Precedent  is  not  Com- 

pUed  with    —  187 


INDEX  1025 

DEED— GHANT— CONVEYANCE — GKTrETRAL     NOTE— 

Continued.  No.  Page. 

Void  or  not  According  to  Circumstaneca —  181 

Void,  without  Grantee's  Name,  Appears —  179 

Water  Eights  and  Mining  Claims  Ln —  186 

Will — Deed  Referred  to  in    —  181 

Words  in  Deeds  as  Admissions —  189 

Words  in  Deed  Construed    —  184 

Words  of  Grant  Always  Necessary   —  175 

Words  Operative  to  Pass  Title   —  189 

Written     Authority     to     Insert     Name    in    Deed — ■ 

Necessary —  179 

Write — Grantor  Unable  to,  When   —  179 

Written  Transfer  When  Necestiary —  173 

DEMTJBRES. 

Ajiswer  Ambignons,   etc 1048  628 

Answer— Not  Stating  Sufficient  Facta   1047  628 

Causes  of  Action,  Complaint  not  Stating 1040  626 

Complaint  Uncertain,  etc 1045  627 

Jurisdiction    of    Person,    Want    of 1044  627 

Limitations,  Statute  of   1041  626 

Misjoinder,  Causes  of  Action,  of   1046  627 

Misjoinder,   Parties,    of    1042  626 

Parties,  Defect  of   1043  627 

DEPOSITION,     See  Affidavit;  Notice;  Order. 

Commission  to   Examine    595  413 

Commission  to  Take   1049  628 

Instructions   to    Commissioners    1050  629 

Introduction  to  the  Testimony 1  '-i3l  632 

Time  Shortened  to  Take v>y2  411 

DIEECTIONS. 

Officer,   to    1053       633 

DISSOLUTION  OF  COEPOEATION.  See  Affidavit;  Cor- 
poration; Notice;  Order;  Petition. 

DISTRIBUTION.  See  Bond;  Decree;  Notice;  Order;  Peti- 
tion. 

EXECUTION.     See  Affidavit;   Notice;   Order;   Supplementa 

Proceedings. 

EXECUTOR  AND  ADMINISTRATOR.  In  this  book, 
synonymous.  See  Affidavit;  Bond;  Inventory  and 
Appraisement;  Notice;  Order;  Petition. 

Administrator — Objections  to  his  Appointment 1056       634 

Administrator — Request  for  his  Appointment  by  Person 

Entitled    to    Letters    1055       634 

New  Forma — 65 


1028  INDEX 

EXECTJTOIl  AND  ADMINISTEATOR — Continned.  No.  Page. 

Executor — Account  to  Bender — To  be  Arrested 1006  637 

Executors — Acting  One  for  Other    1059  636 

Executor — Concealed     or     Embezzled     Property — Com- 
plaint to  Court   1060  636 

Executor — Contract  to  Pay  Debt  of  Estate,  of 1063  638 

Executor— Lease,    Court 's   Order    for    1062  638 

Executor — Objections  to  Appointment 1057  635 

Executor — Objections   to   Appointment    1058  635 

EXHIBIT.     See  Account;  Eetum, 

FINDINGS. 

Decision  of  Court    1068  itS 

GUARDIAN.     See  Notice;   Order;  Petition. 

Appointment  of   1168  697 

Assent  of  all  Persons  to  Sale  by   1071  644 

Consent  to  Sale  by   1072  644 

Guardianship,  Letters  of   10G9  643 

Nomination  of,  Minor  by    1070  644 

Oath  of  Office   603  417 

Bemoval  of   628  432 

HABEAS  CORPUS.     See  Order;  Petition. 

Writ  of  1580  946 

HOMESTEAD.     See    Assignment;    Decree;    Notice;    Order; 
Petition. 

Abandonment  of 271  222 

Admeasurement  of,  by   Appraisers    299  233 

Appearance  of  Public  Administrator  on  Application  to 

SeU 284  228 

Application  to  Appraise  Value  of  272  223 

Application    of    Husband    to    Sell    Homestead — Insane 

Wife 282  227 

Application  of  Wife  of  Insane  Husband  to  Sell    287  229 

Appointment  of  Appraisers  to  Value 274  223 

Appraiser's    Oath    275  224 

Assignment  of  to  Widow  on  Court's  Motion — Separate 

Prop€rty   296  232 

Community   Property,    and    Assignment   of    on    Divorce 

Decree 291  230 

Consent  of  Wife  to  Husband 's  Declaration  of   267  221 

Cruelty,  Extreme,  and  Division  of   288  229 

Declaration,  Husband,  by   265  219 

Declaration,  by  Husband  and  Wife's  Separate  Property       267  221 

Declaration — Unmarried  Person,  by   268  221 

Declaration — Wife,  by 264  217 

I>eel&ration,   Wife   on   her   Separate   Property    266  221 


INDEX.  1027 

HOMESTEAD — CoTiiinned.  No.  Page. 

Declaration — Wife's    Sppnrato   Proprrty — She    ConBcnta  267  221 

Decree  of  Divorce  and  Clause  as  to   288  229 

Divided,  to  be    279  226 

Division   of    289  229 

Division  of  Proceeds  of  200  230 

Divorce,  Decree  in 288  229 

Divorce,  Decree  in   291  230 

Divorce,  Decree  in  292  230 

Eqnal  Division  of  by  Ju(lj:jment   288  229 

Equal  Division  of  by  Judgment   289  229 

Extreme   Cruelty  and   Division  of    288  229 

Pee  of  Public   Administrator  Remitted    286  229 

Head  of  a  Family— Death  and   293  230 

Hend  of  a  PamUy — Declaration  by 268  221 

Head  of  a  Family— Declaration  by   269  222 

Innocent  Party  and  Limited  Period  of  Holding   291  230 

Innocent  Party  Takes  During  Life    292  230 

Insane  Husband  's  Homestead  to  be  Sold 287  229 

Insane  Persons — Notice  to  Sell   283  228 

Insane  Wife — Application  to  Sell  her  Homestead   282  227 

Insane  Wife 's,  Ordered  Sold   285  228 

Inventory  of   298  232 

Inventory — Set    Apart   in    299  233 

Notice  to  Sell,  Insane  Person  's   283  227 

Notice  of  Time  for  Hearing  Application   for  Appraise- 
ment of 272  223 

Order  Appointing  Appraisers   274  223 

Order  Conferring  Majority  Report  of  Appraisers   302  234 

Order — Execution  to  Issue  Against  Surplus  Land 280  226 

Order  Fixing  Compensation  oi  Appraisers   281  227 

Order— Homestead  Divided   279  226 

Order— Homestead  to  be  Sold    278  223 

Order  Rejecting  Majority  Report  of  Appraisers 303  234 

Order  to  Sell,  Insane  Wife 's 2S5  228 

Order  Setting  Apart  and  Execution  to  Issue  for  Surplus  280  226 

Order   Setting   Appraiser's   Report   for  Hearing    301  234 

Probate — Separate   Property  of  Deceased    295  231 

Probate — Support  of  Family  for.  Setting  Aside 294  231 

Public  Administrator   and   Insane   Persons    284  278 

Public   Administrator  Remits   his  Fee    286  229 

Eeport  of  Appraisers  of   298  232 

Eeport  of  Appraisers  of   299  233 

Report   of  Appraisers   of — Dissenting    300  233 

Report  of  Appraisers — Hearing  of 301  232 

B«port  of  Appraisers — Land  Divided    277  225 


1028  INDEX. 

HOMESTEAD— Continneil.  No.  Pa^. 

Report  of  Appraisers — Lnnd  not  Divided 276  224 

Report  of  Appraisers,  Majority  Confirmed   302  234 

Report  of  Appraisers,   Majority  Rejected    303  234 

Separate  Property  Assigned  to  Widow 297  232 

Separate  Property  of  Deceased  and  Assignment  of....  295  231 

Set  Apart 1479  851 

GENERAL  NOTE: 

Abandonment   of    —  223 

Acknowledgment    of   Declaration    is    Essential    and 

Conclusive — When   —  218 

Acknowledgment  to  the  Same  as  to  a  Conveyance 

of  Land    —  222 

Actual  Cash  Value —  217 

Attack  on — Troth  of  Recitals  in  Declaration  must 

be  Shown    —  218 

Brain  Matter  and  Law  Study   —  231 

California  Pastoral  Judicial  Innocence —  217 

Claim  of  Title  to  Premises   —  219 

Community  Property  and  Selection  of    —  218 

Compliance  with  Homestead   Law    —  218 

Compliance  with  Statute  and  Validity  of   —  218 

Consent  of  Wife — When  Necessary   —  218 

Cotenancy  cannot  Properly  be    —  219 

Creditors  Protected  Against   —  217 

Declaration  Need  not  Establish  the  Fact  that  the 

Declarant  is  the  Head  of  the  Family   —  218 

Declaration — Recitals   in   to   be   Established   if   At- 
tacked     —  218 

Declaration — What  to   Contain    —  216 

Declaration  of  Wife — Contents    216-218 

Description    of    Premises    —  219 

Disposal  of  by  Spouse  not  Permitted    217,  218 

Dwelling-house,  as   —  218 

Exemption   of —  217 

Exemption    of    Proceeds    of    on    Execution    Sale....  225,  226 

Facts  of  Residence — How  Determined    —  218 

Family — Home   of    —  217 

Grandchild  Baby  as  a  Family —  231 

Gray  Brain  Matter  and  Law  Studies —  231 

Hay,  Selling,  Product  of  the  Land —  219 

Head  of  Family 216,  231 

Head  of  Family,  Child  may  be  216,  231 

Head  of  Family,  Wife  may  be    216,  231 

Home  of  Family —  217 

Homestead  Law  a  Remedial  Measure    —  217 

Homestead  Law  Must  be  Complied  with    —  218 

Homestead  not  Always  a  Permanent  Home    —  219 

Homestead — How  Created 216,  231 

Hotel  as  Homestead   —  219 

Intention  and  Residence   —  218 

Invalid   if  Declaration   does  not   State  that   Claim- 
ant is  Head  of  a  Family — When   —  218 

Joint    Tenancy    cannot    be   Proi>erly. —  218 

Judgments  Against   —  217 

Judicial  Innocence  in  California   —  217 

Land,  Quality  of,  not  a  Question   —  219 


INDEX.  1029 

HOMESTEAD— GENT:R A L  NOTE — OoTitinn^'fl.  No.  Pagp. 

Land  Washed  Away  to  Obtain   Gold,  Being    —  219 

LienR  Against 217 

Liens  Recorded   216 

Mandatory  Statute — No  Exceptions   —  218 

Married — Declaration  Need  not  State  that  Declar- 
ant  is    —  218 

Mechanics'  Liens  Against   —  217 

Members  of  Family  not  Necessary  to  St;.te   —  218 

Miner's    Cabin,    as    —  219 

Money,  Representing  Value  of    —  223 

Mortgages  Against    —  217 

One  Homestead  at  a  Time —  218 

Pasture,  as —  219 

"  Promanently   Reside,"   Meaning   of    —  217 

Premises — Residence    on    —  218 

Premises,  Value  of   —  216 

Probate  Homestead  and  Declared  Homestead —  218 

Protection  Against  Creditors    —  217 

Quantity  of  Land  is   Unlimited    —  219 

Recorded  Liens —  216 

Eesidonce,   Actual    —  218 

Residence — Fact  of.   How   Determined    —  218 

Residence    and   Intention    —  218 

Residence  to  be  Permanent  Until  It  is  Changed..  —  217 

Residence  on  Premises   —  218 

Selection  of —  216 

Signing    Declaration    by    Initial    Letter    of    Chris- 
tian Names —  218 

Sister  as  a  Family —  231 

Sold  and  Proceeds  Divided   290  230 

Statute  not  Complied  with — No  Homestead    —  218 

Statute   is   Mandatory    —  218 

Surplus  Land  in   Execution  Against    280  226 

"Tenancy  in  Common, "  Property  cannot  be —  219 

Termination  of —  223 

Title  to  Premises — Not  Necessary — Claim  of       ....  —  219 
Ultimate  Pact  is  that  Declarant  is  the  Head  of  a 

Family —  218 

Unmarried    Claimant — How  to   Proceed    ,    —  222 

Use  of  Property  as  a  Test  of  Intention   —  219 

Value  of  Homestead —  225 

Value  of  Premises   —  216 

Vendor's   Liens    Against    —  217 

"We"    in    Declaration    is    a    Statement    that    the 

Spouses  Joined  in   It    —  218 

Who   may  Select    —  216 

Widow — Court  Assigns   It   to   Her — Common  Prop- 
erty     296  232 

Wife  's  Declaration — What  must  Contain —  218 

INDICTMENT     OR     INTOEMATION.     See     Bail;     Bond; 
Criminal  Complaints. 

Indictment,   Information    1073  645 

INJUNCTION.     See   Order. 

nrSTEUCTIONS. 

Officer  to    1171  698 

Officer,  to    1172  698 

Officer   to    1174  699 


1030  INDEX. 

DTTiarPOBY  AND   APPBAISEMENT     See   affidavit;    Or- 
der; Homestead;   Petition.  No.  Page. 

Affidavit  of  Administrator  to    599  418 

Bill  of,  Appraisers  by   1080  650 

Estate  of  Ward — Guardian,  of   1077  649 

Inventory — Appraisement   1074  646 

Money  Only 1075  648 

Property  Discovered  Aft-er  First  Inventory   1078  649 

Eeal  Estate — After  Sale   1076  648 

Supplemental _. 1079  650 

JXTDGMENT.     See  Decree. 

Arrest 1175  699 

Competency,  Person    is  Restored    to 1091  657 

Confession  of    1084  652 

Confession — Docket  Entry 1177  700 

Confession — Money    Eeeeived    1176  700 

Court   by    1086  653 

Damages  in  Lieu  of  Return   1178  701 

Default— Clerk  by  1087  654 

Default — Court  by 1088  655 

Divorce — ^Pinal   1082  651 

Divorce — Pinal   1083  652 

Divorce — Interlocutory 1081  651 

Entry  of  Confession  of   1085  653 

Satisfaction  of   1089  656 

Verdict  on   1090  656 

JUSTICE    OF    THE     PEACE.     See     Acknowledgrment     and 
Proof  of  Instruments;  Certificate;  Justice's  Court. 

JUSTICE'S   COURT.     See    Answer;     Complaint;    Subpoena 
(When  not  found  under  this  head). 

Abstract,  Judgment,  of   1092  657 

Action,  Application  to  Join  in   1107  665 

Action  Transferred — Higher  Court   1093  658 

Affidavit — Action,    Transfer    of 1096  659 

Affidavit— Arrest,  Order  of,  for   1094  658 

Affidavit — Arrest,  Order  of,  for   560  390 

Affidavit — Arrest,  Order  of — Fraudulent  Debtor,  for..  561  390 

Affidavit — Arrest,   Order  of — Removal  of  Property,  tor  562  391 

Affidavit-  -Attachment     563  392 

Affidavit — Attachment  vs.  Nonresident,  for 564  393 

Affidavit — Attachment   to    Procure    Ordei    of   Examina- 
tion     589  409 

Affidavit — Attachment,   Resident,   vs 1097  659 

Affidavit — Change  Place   oi   Trial — ^Interest — Prejudice  1095  659 


INDEX  1031 

JUSTICE'S    COUBT — Continued.  No.     Page. 

Affidavit — Change  Place  of  Trial — ,Tnf?tice  a  WitnPiw..  1100  661 

Affidavit — Change  Place  of  Trial — Prejudice  Citizens..  1099  660 
Affidavit — Claim   and   Delivery     of   Personal    Property, 

on  56.5  39."? 

Affidavit — Contempt,  Abase  of  Process  of  Court   575  400 

Affidavit — Contempt,      Application,      Subsequent       for 

Order    Refused 576  401 

Affidavit — Contempt,     Attorney     Willfully     Neglecting 

Duty   581  404 

Affidavit — Contempt,   Attorney  without  Authority    ....  574  399 

Affidavit — Contempt   Committed    566  394 

Affidavit — Contempt   Committed    584  406 

Affidavit — Contempt,    Copy,    Refusal    of   Permission    to 

Take 573  399 

Affidavit — Contempt    I*roceeding8,    Unlawful    Interfer- 
ence with   570  397 

Affidavit — Contempt,  Juror  Improperly   Conversing...,  567  395 

Affidavit — Contempt,  J^.ror  Unlawfully  Conversing  ....  568  396 

Affidavit — Contempt,  Order  of  Court,  Refusal   to   Obey  582  404 
Affidavit — Contempt,  Order  Once   Refused,   Subsequent 

Application  for 576  401 

Affidavit — Contempt,   Referee   Neglects   to   Take    Testi- 
mony     572  398 

Affidavit — Contempt,  Refusal  to   Obey  Court's  Order..  582  404 
Affidavit — Contempt,    Rescuing    Person    in    Custody    of 

Officer   571  397 

Affidavit — Contempt,     Subpoena,     Willful     Neglect     to 

Serve  580  403 

Affidavit — Contempt,    Testimony,    Referee    Neglects    to 

Take    572  39S 

Affidavit — Contempt,  Willful  Neglect  to  Serve  Subpoena  580  403 

Affidavit — Contempt,  Witness  Unlawfully  Detaining   . .  569  396 

Affidavit— Continuance 1102  662 

Affidavit — Continuance  for   585  407 

Affidavit — Creditors,   Publication    of    Notice    to    620  426 

Affidavit— Default,  to  Set  Aside  1101  661 

Affidavit — Deposition — Commission  to  Examine  Witness  595  413 
Affidavit — Deposition,    Time    Shortened    for    Notice    to 

Take    592  411 

Affidavit — Judgment  Debtor,  Order  for  Examination  of 

Debtor  of -^0  -410 

Affidavit— Justice — Witness    1098  660 

Affidavit— MaU,  Service  of,  by  611  422 

Affidavit — Mail,  Service  of  Summons  by.  of    619  426 

Affidavit — Notice  to  Creditors,  Publication  of   620  426 


1032  INDEX 

JUSTICE'S  COURT— Continned.  TTo.  Page. 

Affidavit — Order   of  Arrest,   for    1094  658 

Affidavit — Order  of  Arrest,  for 560  390 

Affidavit — Order    of    Arrest — Fraudulent    Debtor 561  390 

Affidavit — Order  of   Arrest,   Removal   of   Property,   for  562  391 
Affidavit — Order   of   Examination,   Attachment   to    Pro- 
cure    589  409 

Affidavit — Order  for   Examination   of   Debtor   of   Judg- 
ment   Debtor 590  410 

Affidavit — Order  Regulating  Time   for   Examination   of 

Witness 594  412 

Affidavit— Party,    Substitution    of 616  424 

Affidavit — Party,   Substitution    of 1105  664 

Affidavit — Party  of — Testimony  of  Witness  Necessary.  583  405 

Affidavit— Posting    any    Notice,    of 622  428 

Affidavit— Posting  Notice,   of    621  427 

Affidavit— Publication  of  Notice   to   Creditors 620  426 

Affidavit — Publication  of  Summons,  of 624  428 

Affidavit — Publication    of    Summons    of 623  430 

Affidavit — Redemptioner 1106  664 

Affidavit— Resident,    Attachment    vs 1097  659 

Affidavit — Search-warrant   for    1103  662 

Affidavit — Seach-warrant — Deposition    on   Demand    for.  1104  663 

]           Affidavit— Service  by  Mail,  of 611  422 

Affidavit— Service  of  Notice,  of 612  423 

Affidavit — Service  of  Notice — Clerk,  etc.,  of 613  423 

;           Affidavit— Service— Office  Table — of   614  423 

Affidavit— Service    of   Summons   of 625  429 

Affidavit — Services  of  Summons  by  Mail,  of 619  426 

Affidavit— Set  Aside   Default,   to 1101  661 

Affidavit — Substitution  of   Party 1105  664 

Affidavit— Substitution   of   Party 616  424 

Affidavit — Summons,   Publication   of    624  428 

Affidavit — Summons,   Publication   of 626  430 

Affidavit — Summons,    Service,   of 625  429 

Affidavit— Sureties   of 617  425 

Affidavit — Sureties  Annexed  to  Officer's  Oi'ncial  Bond..  618  425 
Affidavit — Tender    of    Payment,    Demaud    to    be     Re- 
stored  to  Possession 627  431 

Affidavit — Time  Shortened  for  Notice  to  Take   Deposi- 
tion   592  411 

Affidavit — Transfer   of   Action 1096  659 

Affidavit — Trial,   Change   Place   of— Interest,   Prejudice  1095  659 

Affidavit — Trial,  Change  Place  of — .Justice  Witness 1100  661 

-           Affidavit — Trial,    Change   Place    of — Prejudice    of    Citi- 
zens   1099  660 


INDEX  3033 

JUSTICE'S    COUBT — Continned.  No.  Page. 
Affidavit — Witness,    Commission    to    Examine — Deposi- 
tion   595  413 

Affidavit — Witness   Necessary,    to   Take   Testimony....  583  405 
Affidavit — Witness,  Order   Regulating  Time  for   Exam- 
ination  of 594  412 

Amendment   of    Pleadings 15S9  962 

Application — Action   to   Join   in 1 1 07  605 

Attachment — Defaulters 1108  665 

Complaint — Air,   Insufficient,   Fresh,   per   Capita 1138  680 

Complaint — Animals,  Cruelty  to 1143  683 

Complaint — Assault — Deadly  Weapon 1116  669 

Complaint — Assault  to   Murder 1117  669 

Complaint — Burglary — First  Degree 1119  670 

Complaint — Claim    and    Delivery 1155  689 

Complaint — Commitment    on 1154  688 

Complaint — Commmon   Drunkard    1135  679 

Complaint — Criminal — Indorsement   on    1112  667 

Complaint — Criminal  Procedure — Robbery   1114  668 

Complaint — Cruelty   to   Animals 1143  683 

Complaint — Deposition 1113  667 

Complaint — Discharging  Firearms 1137  680 

Complaint — Disturbing  Peace 1146  684 

Complaint — Doing  Business  Without  License 1131  677 

Complaint — Doing    Business    Without    License — Ordin- 
ance   1132  677 

Complaint — Drunkard,    Common 1135  679 

Complaint — Exhibition,  Minor  Employed  .in 1134  678 

Complaint — Expiration    of    Term,   Holding   After 1156  690 

Complaint — Firearms   Discharging    1137  680 

Complaint — Fire  Ordinance,  Violating 1147  685 

Complaint — Forgery    111-3  668 

Complaint — Gambling-house,   Visiting '.  1123 

Complaint — Gambling,   Misdemeanor   1121 

Complaint — Gambling   Tools,   Possession    of    1122  672 

Complaint — Goods    Sold    and    Delivered 1109  C65 

Complaint— Holding    After    Expiration    of    Term 1156  690 

Complaint— Holding    After    Rent    Due 1157  691 

Complaint— Idle    and   Dissolute   Minor 1152  687 

Complaint — Indorsement    on.    Criminal 1112  667 

Complaint — Insufficient   Fresh    Air    per    Capita 1138  680 

Complaint — Keeping  House   of  Hl-fame 1139  681 

Complaint — Keeping  Minor  in  House  of  Prostitution..  1133  678 

Complaint— Keeping  Office  for  Sale  of  Lottery  Tickets.  1142  682 

Complaint — Keeping    Opium    Resort 1149  686 

Complaint — Land,   Rent   of    1110  666 


672 
671 


1034  INDEX 

JUSTICE'S  COTTET — Continued.  No.  Page. 

Complaint — Larceny,    Seaxch-warrant 1120  671 

Complaint — License,   Doing   Business   Without 1131  677 

Complaint — License,  Doing  Business  Without 1132  677 

Complaint — License,   Selling  Liquors   Without 1145  684 

Complaint — Lottery  Tickets,  Keeping  Office  for  Sale  of.  1142  682 

Complaint — Lottery  Tickets  in  Possession 1141  682 

Complaint — Maintaining  Nuisance 1130  676 

Complaint — Malicious    Mischief 1148  68.-5 

Complaint — Minor  Employed  in  Exhibition    1134  678 

Complaint — Minor,  Idle   and  Dissolute 1152  687 

Complaint — Minor,  Keeping  in  House  of  Prostitution..  1133  678 

Complaint — Misdemeanor — Gambling    1121  671 

Complaint — "Move  on, "  Refusing  to 1126  674 

Complaint — Murder,   Assault   to    1117  669 

Complaint — Nuisance    Maintaining    1130  676 

Complaint — Obstructing    Railroad     1125  673 

Complaint — Obstructing    Streets    1136  679 

Complaint — Opium   Den,   Visiting    1151  687 

Complaint — Opium  Eesort,  Keeping   1149  686 

Complaint — Peace   Disturbing    1146  684 

Complaint — Petit   Larceny    1150  686 

Complaint — Possession  of  Gambling  Tools 1122  672 

Complaint — Privy  not   Connected   with   Sewer 1129  676 

Complaint — Promissory   Note    1111  666 

Complaint — Prostitution,    Keeping   House    of 1139  681 

Complaint — Prostitution,  Keeping  Minor  in  House  of..  1133  678 

Complaint — Prostitution,  Visiting  House   of 1140  682 

Complaint — Eailroad,   Obstructing    Ii25  673 

Complaint — Keceiving  Stolen  Goods 1118  670 

Complaint — Eef using  to   "Move  on"   1126  674 

Complaint — Kent    Due,    Holding    After 1157  691 

Complaint— Sent   of  Land    1110  666 

Complaint — Bobbery,   Criminal    Procedure 1114  668 

Complaint — Eubbish  on   Street    1128  675 

Complaint — Eubbish,  Street,  Depositing   1127  675 

Complaint — Seach-warrant — Larceny    1120  671 

Complaint — Selling   Liquors    Without    License 1145  684 

Complaint — Sewer,  Privy  not  Connected  with 1129  676 

Complaint — Stolen    Goods,    Receiving    1118  670 

Complaint — Streets,  Obstructiiig   1136  679 

Complaint — Street,    Eubbish   on    1128  675 

Complaint — Street,  Eubbish  Depositing  on    1127*  675 

Complaint — Threats    to    Commit    Offense 1153  688 

Complaint — Vagrant    vs 1144  683 

Complaint — Violating   Fire    Ordinance    1147  685 


INDEX.  1035 

JTJSTICE'S  COITRT— Continned.  No.     Tage. 

Complaint — Visiting    Gambling-house 1123  672 

Complaint — Visiting  House   of   Ill-fame IHO  6S2 

Complaint — Visiting   Opium   Den    1151  6S7 

Complaint — Vulgar   Language    1124  673 

Controversy — Submission  Without   Action   of lloS  692 

Defaulter's   Attachment    1108  065 

Defaulters,  Attachment   for    10o2  0.''.2 

Demand — Surrender  of   Premises    1039  62:'» 

Demurrer — Answer  Ambiguous,  etc 1048  628 

Demurrer — Answer — Not   Stating   Sufficient   Facts 1047  628 

Demurrer — Complaint  not  Stating  Cause  of  Action 1040  626 

Demurrer — Complaint   Uncertain,   etc 1045  627 

Demurrer — Defect    of    Parties     1043  627 

Demurrer — Misjoinder  of  Causes   of  Action 1046  627 

Demurrer — Misjoinder   of   Parties    1042  626 

Demurrer — Statute    of   Limitations    1041  626 

Demurrer — Want   of   Jurisdiction    of    Person 1044  627 

Deposition — Commission  to  Take    1049  622 

Deposition — Instructions    to    Commissioners lOoO  629 

Directions,    Officer,    to    1053  633 

Docket— Certified   Copy    1160  694 

Docket— Justice  of  Peace    1159  693 

Execution    1161  695 

Execution  Against  Administrator  Upon  Decree  for  Pay- 
ment   of    Debts 1064  639 

Execution — Certificate — Redemption    1164  696 

Execution— Costs    1162  695 

Execution — Deficiency  of  Sale    1066  640 

Execution — ^Lnstructious   to   Officer    1170  698 

Execution — Judgment    for    Money    1065  639 

Execution— Order   of   Sale    1067  641 

Execution — Property  Claimed  by  Third  Person 1105  696 

Execution — Eenewal — Indorsement   1163  696 

Exempt — Claim  Property   by   Third  Party    1166  697 

Guardian — Application — Appointment    1167  607 

Guardian — Appointment  of 1168  697 

Inspection,  Bequest  for   1169  697 

Instructions  to  Officer   1172  698 

Instructions  to   Officer   1171  698 

Instructions  to  Officer   1173  699 

Instructions  to  Officer — Personalty    1174  699 

Judgment,  Abstract  of    1092  657 

Judgment — Arrest  of    1175  699 

Judgment — Confession — Docket  Entry 1177  700 

Judgment — Confession — Money    Eeceived     1176  700 


lOne                                                       INDEX- 
JUSTICE'S  COUHT— Continnod.  No.     Page. 

Judgiut'iit — Damages   in   Lieu   of   Return 1178  701 

Judgment— Defendant,  for    1179  701 

Judgment,  Defendant  for — Counterclaim 1181  701 

Judgment — PMduciary  Capacity 1182  701 

Judgment — Fine    and   Imprisonment 1183  702 

Judgment — Imprisonment    1184  702 

Judgment — Personal    Property 1186  703 

Judgment — Personal   Property,  Value    1187  703 

Judgment    for    Plaintiff — Counterclaim 1180  701 

Judgment — Plaintiff — Money    Demand     1185  703 

Judgment — Property — Eetum    1188  704 

Judgment — Return — Damages    in    Lieu    of 1178  701 

Juror — Summons    1189  704 

Memorandum — Costs  and   Disbursements    1190  704 

Notice— Appeal    1194  706 

Notice — Application  for  Discharge   from  Imprisonment  1207  710 
Notice — Application — Discharge  from  Imprisonment  for 

(C.    C.    P.,    sec.    1143) 1320  760 

Notice  to  Attorney— Time  and  Place  of  Trial 1193  705 

Notice  that  Case  has  been  Transferred    1287  745 

Notice— Case  Transferred   1192  705 

Notice — Claim    is    Disputed    1314  758 

Notice  to  Claimant— Claim  Disputetd 1199  707 

Notice  to  Creditor  of  Laborer 's   Claim 1317  759 

Notice  to  Creditor  or  Defendant — Laborer's  Claim 1196  706 

Notice— Claim  Disputed  by  Creditor 1318  760 

,           Notice — Claim   Disputed   by   Defendant 1315  759 

Notice,  Decision,  of    1203  709 

Notice  of   Decision    1286  744 

Notice— Defendant   Excepts   to   Sufficiency   Sorotirs 1204  709 

Notice  to   Defendant— Sureties  must  Justify 1205  709 

Notice — Deposition,  Taking  of  1322  761 

Notice — Deposition,  Taking  of    1323  762 

Notice — Deposition   to    Take    1325  763 

Notice,  Motion  of— Set  Aside  Default  to 1202  708 

Notice   to   Occupant— Real   Estate    1209  711 

Notice    to    Officer — Laborer's    Claim 1195  706 

Notice  to  Officer — Claim  of  Laborer's  Claim 1316  759 

Notice   to   Officer — Laborer's   Claim   Disputed   by   Crtd- 

.itor 1197  707 

Notice    to    Officer — Laborer's    Qaim    Disputed    by    De- 
fendant     1198  707 

Notice  to  Parties— Time  and  Place  of  Trial 1191  705 

Notice  to  Plaintiff— Adverse  Claim   1208  710 

Notice    to    Plaintiff    of    Adverse    Claim 1285  744 


INDEX.  1037 

JTTSTICE'S  COURT— Continupd.  No.  Page. 

Notice    to    Plaintiff — Arrest    1200       703 

Notice   to   Plaintiff — Justification — Sureties    l2o6       710 

Notice  to  Plaintiff— Substitution  of  Party  Defendant..  1201       708 
Notice — Witness   Out   of   the   State — Motion    for    Com- 
mission  to   Examine    I.'i24       762 

Order — Arrest — Civil    Cases    l.^.-jG       768 

Order — Arrest  Indorsed  on  Summons    1210       711 

Order — Arrest    by    Sureties    1216       714 

Order — Bringing   in   Party — Docket   Entry 1221       715 

Order — Commitment    on     1211       712 

Order — Contempt,  Conviction  of   1388       795 

Order — Contempt,   Juror   Defaulting    1385       794 

Order — Contempt,  Purged  of    1390       796 

Order — Debtor  to  be  Examined 1372       786 

Order— Default  Opening   1220       715 

Order — Deposition,   Commission   to   Take 1365       788 

Order— Docket    1218       714 

Order — Examination — Debtor   of  Defendant    1215       713 

Order— Examination   of    Party    1214       713 

Order— Execution   Eeealling    1223       716 

Order- Inspection  for    1212       712 

Order— Intervention  Allowed   1213       712 

Order — Intervention  Allowing — Docket   1219       715 

Order — Juror   Defaulting — Contempt    in 1385       794 

Order — Opening  Default    1220       715 

Order— Party    Bringing    in     1221       715 

Order — Release,  Levy ' 1222       715 

Order— Substitution   of    1217  714 

Order— Summons,  Publication  of    1446  829 

Order — Sureties,    Arrest    by 1216  714 

Petition — Relief  vs.  Forfeiture  of  Lease 1516  890 

Return — Attachment    or    Execution — Levy    on    Credits, 

etc 1238  721 

Return — Attachment  or  Execution — Levy  on  Shares  in 

Corporation    1239  722 

Return — Attachment  of  Personalty   1235  719 

Return — Attachment    of    Personalty    1236  720 

Return — Execution — No  Property  Fund   1233  719 

Return — Execution  Satisfied   1234  719 

Return— General    1232  719 

Return— Sale  of  Real  Estate    1237  720 

Return  of  Search-warrant — ^Inventory  Attack    ; .  1224  716 

Return — Service  of  Notice — Case  set  for  Trial  on  Hear- 
ing Demurrer    1227  717 

Return — Summons   1230  718 


1038  INDEX 

JtJSTICE'S  COURT — Continned,  No.  Page. 

Eeturn — Summons  on  Arrest    1229  718 

Return — Summons    vs. — Corporation    1226  717 

Eeturn — Summons  of — County,  etc 1225  716 

Return — Summons — County   or   City,   etc 1228  717 

Return — Summons  of — Minor  Defendant    1231  718 

Stipulation   as   to    Facts    1241  72.3 

Stipulation,   Transfer   Action,   to    1240  722 

Subpoena    1242  723 

Subpoena — Affidavit,  Secure  Nonresident  Attendance..  1541  917 

Subpoena— Affidavit   of   Service 1542  918 

Subpoena — Bring   Papers    1545  919 

Subpoena — Civil  Proceedings   1539  916 

Subpoena — Criminal    1243  7.^4 

Subpoena — Duces    rectum — Civil    Proceedings 1546  920 

Subpoena — Order,  Witness  to  Attend 1547  920 

Subpoena — Witness  Nonresident    1540  917 

Summons     12«  724 

Summons,  Alias   1245  725 

Summons,  Certificate  Accompanying    1247  726 

Summons — Order  of  Arrest  on    1246  725 

Sureties,  Justification  of — Civil  Cases   1275  738 

Undertaking — Arrest,  Order  of    828  491 

Undertaking — Arrest,  Part  of  Defendant  on   829  492 

Undertaking— Arrest   by   Plaintiff    827  491 

Undertaking,   Appeal,   on    1253  729 

Undertaking— Appeal  from   Fine   and   Imprisonment...  1250  727 

Undertaking — Appeal  from  Judgment  of  Imprisonment.  1251  728 

Undertaking — Attachment    1248  726 

Undertaking — Attachment   on    830  492 

Undertaking — Attachment   on   Levy   Stay 833  49o 

Undertaking— Bail  Bond— General    1252  729 

Undertaking— Bail  Forfeited        834  496 

Undertaking— Bail    Forfeited— Money    Deposit 835  496 

Undertaking— Bond  for  Appearance  of  Witness,  etc 1254  730 

Undertaking — Claim  and  Delivery,   on 836  497 

Undertaking — Claim  and  Delivery,  on  837  498 

Undertaking— Forfeited  Bail   834  496 

Undertaking — Keep  the   Peace    1255  731 

Undertaking— Levy,  Stay  of  Attachment    833  495 

Undertaking — Money   Deposit   Forfeited    835  496 

Undertaking — Plaintiff  Arrest,  on    827  491 

Undertaking — Postponement  of  Action   1256  731 

Undertaking,  Release  of  Attachment    1249  726 

Undertaking — Replevin — Return  to  Defendant 837  498 

Yenire 1257  732 


INDEX.  1039 

JUSTICE'S  COITET— Continued.  No.     Pagre. 

Venire — Indorsement 12)8  7:i2 

Verdict — Defendant,    Connterolaim    1260  733 

Verdict— Defendant    (or   Plaintiff)     1259  733 

Verdict— Plaintiff    1261  733 

Verdict— Replevin— Defendant    1263  733 

Verdict— Replevin  for  Defendant 12G4  734 

Verdict— Replevin — Plaintiff    1262  733 

Verdict — Replevin — Special  Portions  of  Property 1268  735 

Verdict — Replevin — Specific    Portions    of    Property....  126.5  734 

Verdict — Special    Issues    1267  735 

Verdict — Special    Issues    1269  735 

Verdict — Special    Issues 1270  736 

Verdict — Special  Issues    Submitted 1266  734 

"Warrant — Arrest  on    1271  736 

Warrant — Indorsement  Service  of    1272  737 

Warrant — Search    1273  737 

Writ,    Arrest — Witness    1584  954 

Writ — Attachment    1583  953 

Writ,   Juror   Attachment    1585  954 

Writ — Possession    1578  944 

Writ,  Restitution   1579  945 

JUSTIFICATION    OF     SUIIETIES.     See    AOidavit;     Bail; 
Bond;  Order;  Petition;  yurtties. 

Affidavit  for   617  425 

Civil  Cases,  in    1275  738 

Criminal   Cases,   in 1276  739 

GENERAL  NOTE: 

Affidavit  of  Sureties —  739 

Authority  of  Magistrate  as  to   Residence   of,  on..  —  739 
Bail — Magistrate  Given  Discretionary  Power  as  to 

Examination   of   Sureties    —  739 

Bail   Must  Justify  by   Affidavit  Before  the  Magis- 
trate      —  739 

Bail — Qualification   of    —  739 

Bail — Residence   of   Sureties — Authority   of   Magis- 
trate,  as    to    —  739 

Freeholders  to  be    —  7o9 

Householders,   to  be    —  739 

Residents,   to   be    —  739 

Specified  Sum  to  be  Worth    —  739 

Sureties — Must  be.  When  Several  Justify,  Equiva- 
lent to  Two   Sufficient —  739 

Two  or  More  Sureties — On  Bond   —  739 

ULBOEER.     See  Lien;  Mining;  Notice. 

Notice  of  Change  of  Terms  of  Lease    S65  258 

Notice  to  Attachment  Officer   3S4  274 


1040  INDEX. 

LANDLORD.     See    Demand;    Lease;    Notice.  No. 

Notice,    Work    on    Logs    386  275 

Notice   to    Quit    360  258 

Notice  to  Pay  Rent  or  Surrender  Premises 364  257 

Notice  to  Perform — Covenants  of  Lease 363  257 

Person  in  Possession  to  Purchaser   369  259 

Notice   Terminating   Tenancy    366  258 

Notice   Tenninating  Tenancy    367  259 

LEASE.     See  Notice;   Order;   Petition. 

Acknowledgment    that    Tenancy    Exists 368  259 

Agreement  to  Continue  Lease  After  Expiration  of  Term  336  247 

Alteration — Lessee    not    to    Make 321  242 

Assign — Lessee    not    to    321  242 

Assign  "Without  Permission,  not  to 344  249 

Building  Excepted    352  251 

Change  of  Terms  of,  or  Surrender  Possession 365  253 

Circus — Exception    of    Balcony    to    See    It    Go    by....  354  252 

Common  Form    305  236 

Common  Form   306  236 

Condition  Sale  Under  Form  of  Lease   356  253 

Covenants — Assign,  Underlet,  Alter,  Improve,  not  to..  321  242 

Covenant  for  Continuing  After  Expiration  of  Term....  336  247 

Covenant   Determining    319  242 

Covenant — Exception   of   Timber    324  243 

Covenant— Holding  Over 323  346 

Covenant — Ironclad — Re-entry    311  239 

Covenant — Leave  to  Build   328  244 

Covenant — Lessee — Bum  the  Straw,  not  to    326  243 

Covenant — ^Lessee  to   Purchase    320  242 

Covenant — Lessee   to   Repair    332  245 

Covenant  to  Repair 313  240 

Covenant — Lessee — Repair  to — Amount  Stated 346  250 

Covenant — Lessor  may  Determine  His  Option 318  242 

Covenant — Lessor  may  Enter    314  240 

Covenant — Lessor  may  Enter  and  Inventory    331  245 

Covenant — Lessor  to  Sell  Inheritance  to  Lessee 341  249 

Covenant — Lessee   may   Quit    316  241 

Covenant — Lop  Trees,  not  to   327  244 

Covenant — Loss    by   Fire    357  254 

Covenants — Notice  to  Perform   363  257 

Covenant — Offensive  Trades,  not  to  Carry  on 329  244 

Covenant — Possession  to  Deliver    317  242 

Covenant — Quiet  Enjoyment — ^Ironclad   315  241 

Covenant — Renewal    351  251 

Covenant — Rent  to  Pay — Ironclad   312  240 


INDEX          •  1041 

LEASE— OontfutiPd.  No.     Page. 

Covenant — Rcpaira   as   to 325  243 

Covenant — Taxes  as  to 323  243 

Covenant — Taxes  and  Bepairs  Deducted  from  Bent 547  250 

Covenant — Timber  as  to    324  243 

Covenant — Underlet,  not  to    307  236 

Covenant — Use  as  Work  or  Sehoolhoase,  not  to 345  250 

Crop — On    Shares    309  238 

Determination  of,  by  Lessee    339  248 

Ejectment — P/iendJy,  to  Enable  Person  to  Bring  Salt.  335  246 

Entry,   Lessor   by — Bent   not   Paid    338  247 

Exceptions   in    353  252 

Exceptions  in    354  252 

Exception  of  Building 352  251 

Exceptions  in — Circus,  to  See  go  by,  from  Balcony....  354  252 

Extrahazardous  Covenant    304  238 

Farming 309  238 

Fire — Loss    by.    Covenant    357  254 

Friendly  Lease  for  One  Year   333  245 

Friendly — Believe  Neighbor   334  246 

Groods — Sale,  Conditional,  and  Lease  from 355  252 

Goods — Sale,  Conditional,  and  Lease  from 356  253 

Habendum  Clause   for  Lives    348  251 

Habendum   Clause   for   Lives    349  251 

Habendum  Clause  for  Lives  and  Years   337  247 

Holding  Over 307  237 

Holding   Over    308  237 

Holding    Over    Covenant     322  243 

House — Ironclad   Covenant   of    310  239 

Improve,  Lessee  not  to 320  242 

Ironclad  Covenant — House    310  239 

Lease,   Common    305  236 

Lease,    Common    306  236 

Lease   of   Tenement    304  235 

Lessee,  Assign,  not  to    344  249 

Lessee,  Build   to    328  244 

Lessee,  Burn  Straw,  not  to   326  243 

Lessee  Covenants  that  Noxious  Trades  will  not  be  Car- 
ried on    342  249 

Lessee— Death    of.    Voids    Lease 340  248 

Lessee   may  Determine   on  Notice    339  248 

Lessee  to  Inhabit  Premises    343  249 

Lessee  to  Insure  at  His  Own  Expense 330  244 

Lessee,  Lop  Trees,  not  to  327  244 

Lessee   to   Purchase   Premises    320  242 

Lessee   Shall   Expend   Sum   Stated   for   Repairs 346  2-30 

New  Forms — 66 


1042  INDEX 

LEASE — Contrnned.  No.  Page. 

Lessor   may  Determine   on   Notice 388  248 

Lessor    may    Enter — Ironclad     314  240 

Lessor  may  Enter  and   Make   Inventory 331  245 

Lessor,  Will  Sell  Preinises  to  Lessee 341  249 

Letting  House  for  One  Year — Friendly 333  245 

Life — Reddendum  Clause  for   350  251 

Lives — Habendum   Clause   for    348  251 

Lives — Habendum   Clause   for    349  251 

Materials  for  Repairs — by  Lessor    325  243 

Memoranda   of   Renting,   Friendly 334  246 

Mining  Claim  of 358  254 

Notice — Application  to  be  Restored  to   Premises 362  257 

Notice — Change  of  Terms  of   365  258 

Notice  to  Intended  Purchaser  of  Tenant's  Interest 369  259 

Notice  to  Pay  Rent  or  Quit 364  257 

Notice    to    Perform    Covenants 363  257 

Notice    to    Quit    360  256 

Notice  of  Quitting — Tenant   361  256 

Notice,  Tenancy  Terminated    366  258 

Notice,    Tenancy    Terminated 367  259 

Noxious  Trades,  not  to  be  Carried  on 342  249 

Offensive  Trades,  not  to  Carry  on 329  244 

Option — Lessor   may   Determine   Lease 318  242 

Possession  to  Deliver   317  242 

Possession  Surrender  or  Pay  Rent 364  257 

Premises    to    be    Inhabited 343  249 

Quiet  Enjoyment    315  241 

Quit,   Notice   to    360  256 

Reddendum    Clause    for    Life    350  251 

Re-entry  Covenant 311  239 

Re-entry,    Landlord    may — Ironclad    Covenant 311  239 

Removal  of   351  251 

Rent   not   Paid,   Lessor   may    Enter 338  247 

Repair — Lessee   Covenants   to    332  245 

Repairs — Lessor    Finding    Materials 325  243 

Repairs  and  Taxes  Deducted  from  Rent 347  250 

Restored  to  Possession — Notice  of  Application  to  be...  362  257 

Road  Excepted    353  2.52 

Schools  or  "Workhouse — Not  to  Use  as 345  250 

Share,  Forming  on    309  238 

Surrender  of   359  256 

Surrender  Possession  or  Pay  Rent 364  257 

Taxes — Covenant  as  to 323  243 

Taxes  Deducted   from   Rent 347  250 

Tenancy   Acknowledged    308  259 


INDEX.                                  .  1043 

LEASE — Con  Hun  cd.  No.  Page. 

Tenement,   Lease   of    304  235 

Tenendum  Clause   for  Years   and   Lives 337  247 

Terminated   by   Death   of   Lessee    340  248 

Terminating  Tenancy,   Notice    366  258 

Terminating    Tenancy,    Notice    367  259 

Timber — Exception  of    324  243 

Trades,  Noxious,  not  to  be  Carried  on 342  249 

Trees,   Lessee   not   to   Lop    327  244 

Underlet — Covenant    not    to 307  236 

Underlet — Lessee  not  to 321  242 

Waste — Lessor  may  Enter  for 338  247 

Way   Excepted    353  252 

Work  on  Schoolhouse — Not  to  be  Used  as 345  250 

laertPTEES  OF  ADMTNTSTEATION.  See  Affidavit;  Bond; 
Notice;   Order;   Petition. 

IiETTEKS  TESTAMENTARY  AIH)  OF  ADMINISTRA- 
TION. See  Affidavit;  Bond;  Citation;  Notice;  Or- 
der; Petition. 

Lietters,  Administration   of,   General    12S0  741 

Letters,   Administration   of.   Special    1281  742 

Letters,   Administration,    Will   Annexed — Executor    Dy- 
ing  After   Qualifying    1278  740 

Letters,  Administration,  Will  Annexed,  not  Appointing 

Eiecntor 1279  741 

Letters  Testamentary   1277  739 

GENERAL  NOTE: 

Administrator  Suspended — Special   Issued    —  742 

Death    of    Administrator — Special    Granted —  742 

Letters  Must  Conform  Substantially  to  Statute....  —  740 

Letters  With  Will  Annexed    —  740 

Number  of  Administrators,  any  may  be  Appointed  —  740 

Public    Administrator    may    Obtain,    When —  742 

Qualifications  of  Administrator,  With  the  Will  An- 
nexed     —  740 

Removal    of   Administrator — Special   Granted —  742 

Special   Administrator,   When   Granted    —  742 

Special,   Issued  When   There   is  Delay   in  Granting 

Regular    —  742 

Special,   When   General  are  Irregular   —  742 

"Substantially, "  Meaning  of   —  740 

*  *  Succession, ' '  Meaning  of   —  740 

"Will  Anjiexed" — Letters  of  Administration  With  —  740 

X£EN. 

Affidavit — Attachment  Lien  upon  Logs  and  Timber....  386  275 

Animal   Sold   to   Satisfy    387  275 

Architects'    Lien — Notice    37S  272 

Attorney    at    Law 's— Notice    of 3S2  273 


1W4  INDEX. 

IJEN— Continiipd.  No.     Pa^. 

Contractor's    373  269 

Disputed  Claim — Attaehmeiit   385  274 

Laborer's    372  269 

Laborer 's   Attachment,   Notice   of    384  274 

Logs   and  Timber   Upon — Affidavit    386  275 

Materialman 's 370  259 

Materialman's    371  268 

Notice,  Agreement  to  Furnish  Material  to  Contractor  of  375  271 

Notice — Assignee,  to,  of  Attorney  at  Law's — Lien 382  270 

Notice — Assignee  of  Servants '        383  274 

Notice — Completion   of   Work    381  273 

Notice — Laborer's   to    Officer   Holding   Attachment 384  274 

Notice   to   Officer  That   Claim  is   Disputed    385  274 

Notice — Owner,  by — Not  Responsible  for  Improvements  379  272 

Notice   Owner  by — Not  Responsible  for  Improvements.  .  380  272 

Notice — Propagating 388  386 

jj^otiee — Reputed    Owner   to    of    Architect's 378  272 

Notice — Reputed   Owner    of   Laborer 's,    to 377  271 

Notice — Reputed    Owner   of    Materials    Furnished    Con- 
tractor,   to    376  271 

Notice — Sale  of  Animal,  of,  to  Satisfy   387  275 

Owner  not   Responsible   379  272 

Owner  not  Responsible    380  272 

Propagating  Animals 388  275 

Reputed     Owner — Notice — Materials      Furnished      Con- 
tractor    375  271 

Reputed  Owner — Notice  to  of  Materials  Furnished....  376  271 

Reputed   Owner — ^Notice — Laborer 's    377  271 

Servants ' — Notice  of 383  274 

Subcontractor's 374  370 

Works   Completed — Notice   of    381  273 

GENERAL  NOTE: 

Abandoned  Contract   —  265 

Acquiescence   Presumed   in   Absence   of   Notice....  —  266 

Agency   Under   Employer —  262 

Agent  of  Corporation  and  Notice  of  Labor,  etc....  —  267 

Alteration   of   a   Mine    —  263 

Amended   Notice    of — Not   Allowed — Not    Even    of 

Description   of   Property   Subject   to 265,266 

Assignment  by  Contractor  of  Money  Due —  265 

Attachment  by   One   Claimant   of   Many —  275 

Attorney  at  Law   (Under   Salary)    and  Lien —  267 

' '  At  Usual  Rate, ' '   Meaning  of —  265 

Bond — Contractor  'a —  267 

Boxes  in  Which  Materials  Used  Were  Packed,  as..  —  262 

Burdens  Borne  by  Truthful  Owners —  265 

Claims  Filed   Wh&n,  no   Excuse   for   not —  265 


INDEX.  1045 

T-TRW — G'RTrErRAL  NOTE — Continaed.  No.  Page. 

Class    Legislation - '  ' 

Common-law   Bond   of    Contractor    —  ^'57 

Completion  Notice  Prima  Facie  True —  -^^> 

Conditions    of    Contract    —  264 

Conspieuoaa  Place — Notice  not  in —  2G7 

Constructing  a   Mine    —  263 

Construction    of    ' '  Payment "    —  264 

Construction    of    Statute — Liberal —  264 

Contract    Abandoned    265 

Contract    Price    —  264 

Contracts   Recorded   When    —  261 

Contractor 's  Bond   267 

Contractor — Money  Assigned  by  Before  Due —  li6u 

Cooking   for   Laborers    261 

Corporation's  Knowledge  of  Work  on  Its  Property  —  267 

Description,  Owner 's,  etc.,  as  to   203 

Description— Property  Subject— Amended  Notice,  of  265,  266 

Destructive  Work — Mining 263 

Director  of  Corporation   and  Corporate  Knowledge  —  267 

"Drifting  in  a  Tunnel"   —  263 

Employment,  Termination  of  Notice  as  to —  26o 

Error  in  Notice  of    ""'^ 

Evidence — Corporation 's  Knowledge  of —  -67 

Explosion,    Powder,    as    a ^^^ 

Expressions — Judicial  Notice  of   ^^^ 

Pacts   not   Correctly   Stated,   Lien   Lost 265,  26b 

Fixed  Price  of  Materials   —  ■±* 

Flash  of  Powder,  as  a    —  -^f 

Garnishment — Money  Due  Contractor,  of —  26.-> 

Gibbs   vs.   Tally   and   Common-law  Bonds —  267 

Oold — Extractinor  from  Mine   —  263 

Improvement — Mine,  of   263 

Inconveniences  of  Truthful  Men  265 

Judgment    and    Other    Liens    Prior    to    Work    Com- 
menced    266 

Judicial  Notice  Taken  of  "Chutes,"  "Cross-cuts," 
"Inclines,"    "Stopes,"    "Shifts,"    "Tunnels," 

"Uprises" — Mines   in    —  262 

Knowledge — Claimant,  as  to  Ownership,  of —  262 

Knowledge — Owner,  as  to  Work,  of    —  267 

Knowledge — Owner,    of    Tenant's    Intentions,    by..  —  267 

Knowledge — President,   of   Corporation,   of —  267 

Laborers  Actually  Doing  Work —  262 

Laborers  Under  a  Contract  of  Builder —  262 

Landlord  Must  Improve,  When   —  267 

Landlord's  Notice  of   Improvements  Presumed....  —  267 
Lease — Tenant  may  improve — if  He  Does  Landlord 

Liable,  Unless  —  267 

Legislation  by  Classes -  -  275 

Lost  if  Notice  of  is  Untrue   —  265 

Market  Price —  264 

Market  Rates —  264 

Market   Value    —  *64 

Materials — Fixed  Price  of   —  264 

Material  Must  be  Furnished  to  be  Used  in  the  Par- 
ticular Building  Where  Used    —  262 

Materialman   Under    Contractor    —  262 


1046  INDEX. 

UEN— G'K>rR'R  A  L  NOTE— Continned.  No.  Pa^e. 

Meelianies' Liens  Depend  upon  Statute —  261 

Mine — Construction  of   -""* 

Mine — Construction,    Alteration,    Improvement     or 

Eepair  of   —  2^3 

Mine — Extracting  Gold  from —  263 

ISiistake— Date  of  Contract,  in  (Two  Years)  Upheld  —  235 

Mistake  in  Notice  of   —  265 

Money  Lender  for  Loan  to  Contractor  for  Purchase 

of  Materials —  262 

Mortgages  Prior  to  Material  Furnished —  266 

Mortgages,   Prior  to   Work   Commenced    —  266 

Name  of  Ovmer  When  Lien  is  Filed —  264 

Notice — Amended— Not   265,  266 

Notice — Compliance  of —  265 

Notice — Each  must  be  Sufficient  —  265 

Notice — Error  in,  of —  265 

Notice — Judicial  of  Words   —  262 

Notice — Lien  or   —  264 

Notice — Lien  and  Proof  of — Variance —  264 

Notice — Mistake  in,  of    —  265 

Notice — Owner,  Material  to    —  265 

Notice — Owner  not  Responsible —  266 

Notice — Posted,  not,  in  "Some  Conspicuous  Place"  —  267 

Notice  Presumed    —  267 

Notice — Responsible,    not,    by    Vendee    in    Posses- 
sion    —  266 

Notice — Several,  not.  Read  Together  as  One —  265 

Notice — Statements  in  not   True — Lien   Lost 265,266 

Notice— When  to  File,  of    —  265 

Owner's  Knowledge  of  Tenant's  Intentions —  267 

Owner — Knowledge  of  as  to   V/ork —  266 

Owner,  Possession  of    —  267 

Owner  or    Reputed  Owner —  263 

Owner — Responsible,  not — Notice —  266 

Owner,  Truthful,  Bear  Burdens  of  the  Untruthful..  —  265 

Ownership,  Presumption  of   262 

Patterns    Used    in    the    Manufacture    of    Parts    of 

Structure    —  262 

"Payment,"  Construed   —  264 

Permission — Owner  to  Improve,  of   —  267 

Posting  Notice   of   not   Responsible —  267 

Possession  of  Vendee  as  to  Lieu —  266 

Powder  Used  but  Vanishing  in  a  Plash —  262 

President  of  Corporation — His  Knowledge  the  Cor- 
poration's    —  267 

Presumed,  Notice  of   —  267 

Presumption  of  Ownership    —  262 

Prima  Facie  Evidence  of  Corporation's  Knowledge  —  267 

Prima  Facie  Evidence  of  Ownership —  262 

Rates  Reasonable   —  264 

"Rates,"  Usual,  Meaning  of   —  265 

Reasonable,  Market  Rates —  264 

Reasonable  Rates —  264 

Reasonable  Worth  of  Materials  —  264 

Recorded  Liens — Not  Mechanics '   —  266 

Recording  of  Contracts —  261 

Regular  Market   Price    —  264 

Eepair  of  a  Mine    —  263 


INDEX.  KMT 

1111111— OKNIOT? AT.   NOTE— Continued.  No.  Pag«. 

Reputed  Owner —  263 

Reservation  of  Twenty-five  Per  Centum —  261 

Responsible   Notice    —  266 

Res|X)n8ible,  not.  Notice  by  Vendee  in  Possession..  —  266 

"Running  a  Tunnel " —  263 

Salaries  of  "Anv  Other  Person"   (an   Attorney  at 

Law  Under  Salary  has  Lien)    —  279 

Services  Rendered  by  Any  Person  and  Lien —  267 

Statement  of  Facts  not  True  Lien  Lost 26:'),  266 

Statute — Liberal  Construction    —  264 

Statute  must  be  Strictly  Complied  with —  261 

Statute  must  be  Substantially  Observed   —  261 

Street  Work    —  262 

Strict  Compliance  with  Statute —  261 

Substantial  Compliance  is  Sufficient  —  261 

Substantial  Observance  of  Statute  Necessary —  261 

Teamster  Hauling^  Brick    —  262 

Teamsters  Hauling  Material   —  262 

Terms — Time   Given,   etc —  264 

Variance — Allegation  and  Proof  of  Price  Between.  —  264 

Variances  Fatal    —  264 

Variance,  Notice  of  and  Proof  of —  264 

Verification   by   Attorney    —  265 

Verification — "The  Claim  is  True"  no  Better  than 

' '  The  Facts  Stated  Therein  are  True  " —  266 

Verification  of  Completion,  Notice —  265 

Verification — "The      Facts      Therein      Stated      are 

True ' '   Good    —  265 

Verification  Months  Before  Piling  Claim —  265 

Vendee   in   Possession — Notice,   Must   Give —  266 

Vendor  of  Materials  to  Materialman —  262 

Wages  and  Salaries  of  Miners,  Mechanics,  Servants, 

Clerks  and  Laborers   —  273 

Wages  and  Salaries  of  "Any  Other  Person" —  267 

"What  it  is  Worth,"  Meaning  of   —  265 

Who  may  Have —  261 

Words,   Judicial   Notice   of —  262 

Words,   Meaning   of    262-265 

Work  Commenced  and  Notice  of  by  Owner —  266 

Work — Knowledge  of  Owner  as  to —  266 

Work  on  Street —  262 

Writing — Contracts  to  be  in    —  261 

LOST  PROPERTY. 

Afl^davit— Finder 1282  742 

Appraisement  of 1593  963 

MAl-TDAMTJS.     See  Order;  Petition;  Writ. 

Alternative   1283  743 

Peremptory    12S4  743 

GENERAL  NOTE: 

Affidavit  to  Obtain 743 

Alternative,    Writ   of    744 

Application    for    —  744 

Courts  may  Issue — What   —  74i 

Peremptory  Writ  of —  7-^4 

W^rit  may   Issue — When    —  714 

.Writ,  Purposes  of   —  74  4 


1048  INDEX 

MAREIAGE.  No.  Page. 

Marriage  Ceremony 390  277 

Marriage  License 389  276 

MTNTNG. 

Adverse  Claim  and  Protest   414  293 

Affidavit    of    Improvements    made 401  287 

Affidavit — Nonmineral    406  289 

Agreement  of  Publisher 403  287 

Application   for  Patent 398  28:J 

Application  for  Survey  U.  S 394  280 

Application  for  Survey  U.  S 396  282 

Certificate — Identity  of  Claim   397  282 

Certificate — Register 's,  of,  Posting 412  292 

Certificate — Suit  not  Pending 413  292 

Estimate   of  Surveyor-general    395  281 

Pees  and   Charges,   Statement  of    411  291 

Forfeiture,  Notice  of   ,  415  296 

Improvements — Affidavit  of  Making    401  287 

Known  Veins  not  Existing    407  290 

Labor,  Proof  of   402  287 

Location  of  Placer  Claim 391  278 

Mineral — Non,  Affidavit 406  289 

Notice  of  Application  for  Patent   399  284 

Notice  of  Forfeiture  415  296 

Notice  of  Location   391  278 

Notice  of  Location  of  Quartz  Claim 392  278 

Notice  of  Location  of  Water  Eight 393  279 

Ownership,  Proof  of   405  288 

Patent,  Application  for   398  283 

Patent,  Notice  of  Application  for   399  284 

Placer  Claim — Notice  of  Location 391  278 

Possession — Proof  of  405  288 

Posting  Notice  and  Diagram — Proof  of 400  285 

Power  of  Attorney    404  288 

Proof   of   Ownership    405  288 

Proof  of  Labor    402  287 

Proof,  Liens — That  None  Exist   407  290 

Proof — Plat  and  Notice  Remained  Posted 410  291 

Proof  of  Possession   405  288 

Proof  of  Posting  Notice  and  Diagram 400  285 

Protest  and  Adverse  Claim 414  293 

Publisher — Agreement  of 403  287 

Quartz  Claim — Notice  of  Location  of 392  278 

Eegisfcer  'i  Certificate  of  Posting 412  292 


INT>EX.  lO'l^ 

MINING — Contimied.  No.  Page. 

Beply  to  Application  for  Survey 396  282 

Statement  of  Pees  and   Chargoa 411  241 

Suit  Pending — Certificate  of  None   41.3  292 

Survey,   Application    for    394  280 

Surveyor  General,  Estimate  of 39)  281 

Water  Bight — Notice  of  Location    391  279 

BQNOB.     See   Complaint;    Guardian;    Notice;    Order;    Peti- 
tion. 

Consent  by,  to  Probate  Will   li^71  942 

MOBTGAGE.     Soe     Acknowledgment;     Affidavit;     Notice; 
Order;  Petition;  Trust  Deed. 

Acknowledgment — Chattel  Mortgage   421  302 

Affidavit — Chattel  Mortgage  to   420  302 

Chattel   Mortgages    416  297 

Chattel   Mortgages    417  299 

Chattel   Mortgages    418  299 

Chattel  Mortgages 419  301 

Church   by — Notice   of  Application    to    431  313 

Code  Form— Land 422  3o2 

Corporation   by   Land    427  310 

Decedent,  Estate  of  by 429  312 

Deed   as   Mortgage    430  313 

Estate  of  Decedent  by   429  312 

Land  of 423  305 

Land  of 42-4  305 

Land  of   425  307 

Land  of 426  308 

Land  of   428  312 

Order— Church  to 432  314 

GENERAL  NOTE: 

Administrator  by —  312 

Advances — Further    —  304 

Affidavit   to   Chattel   Mortgage    —  297 

Agreement  to  Give    —  303 

Assif^uments,   Absolute   as   Chattel    —  298 

Chattel — Acknowledgment  of   —  297 

Chattel  Mortgages   —  298 

Chattel— Void   When    —  297 

Collateral  Security  may  be —  298 

Condition  Broken — Effect   of    —  303 

Contract  of — Form  not  Material   —  303 

Covenants  in  Estate 's —  313 

Creditors,  Effect  on  —  297 

Crop  and  Possession — Chattel   —  298 

Debt — Canceled  Debt   Paid — Deed   Absolute —  303 

Debt  not  Canceled,  Debt  not  Paid — Deed   a  Mort- 

trage   oOd 

Debt  Secured  by — Identification  of —  303 


1050  INDEX. 

MOKTGAGE — GENERAL  NOTE— Continued.  No.  Page. 

Deed   Absolute   on  Face   may   be —  303 

Deed  as — Defeasance — Acknowledged  and  Recorded  —  313 

Deed  Executed  and  Delivered —  303 

Deed  and  Mortgage — Difference  Between  Explained  —  303 

Defeasance — Acknowledgment   and   Recording   of..  —  313 

Description   in    303,  304 

Description  in  by  Reference  to  Patent —  304 

Estate  of  Deceased  Person's  Covenants  in —  313 

Estate  of  Decedent  by    —  312 

Execution — Form  of —  303 

Executed  How    ' —  304 

Pacts  Outside  of  Writing  Considered —  303 

False   Statement  of  Occupation   in  Chattel —  299 

False  Statement  of  Residence  in  Chattel —  299 

Fixtures  Att-ached  to  Leased  Property   —  304 

pVirther  Advances   —  304 

How  Executed    —  304 

Identification  of  Property —  304 

Immediate   Possession — Chattel    —  298 

Increase  of  Animal  Mortgag^ed — Chattel    —  29S 

Increase  of  Cattle  After  Mortgage — Chattel —  29? 

"Increase,"   Meaning  of— "Chattel"    —  29^ 

Increase  of  Property— Chattel   —  29S 

Instruments,  Several,  in  Writing,  Read  Together  as  —  303 

Land  in  Two  or  More  Counties —  297 

Land   of— When   Void    —  297 

Lease    by   Mortgagor    —  304 

Legal  Title  to  Property  Described  in  Chattel —  293 

Liberal   Construction   the   Rule    — .      298 

Loans  on  Collateral,  may  be   —  298 

Mistakes  in  Description —  304 

Mortgagee — Inquiries  by   —  297 

Mortgagee — Must    Make   Inquiry    —  297 

Mortgagee  and  Party  in  Possession  of  Land —  297 

Mortgagee's   Possession — Chattel —  298 

Mortgagee's    Right   to   Increase    of    Cattle —  298 

Notice   of— Effect  on    —  297 

Occupation  of  Parties  to  Chattel —  299 

Party  in  Possession,  as  to   —  297 

Payment   of   Renewal  of  Note   Secured   by,   is   not 

Payment —  304 

Personal  Property  and  Land  in  One  Mortgage....  —  298 

Personal   Property — When   Void    —  297 

Possession,  Change  of —  298 

Promissory  Note,  Bond  and  Other  Evidence  of  Debt 

not   Necessary    —  303 

Property — Identification  of   —  304 

Real  and  Personal  Prox>erty  in —  304 

Real   Estate   and   Personal   Property   in   One   Mort- 
gage      —  298 

Reformation  of,  by  Judicial  Process —  30i 

Reference  to  Patent  for  Description —  304 

Residence  of  Parties  to  Chattel    —  299 

Right  of  Redemption — Chattel   —  29S 

Statute  of  Limitations,  as  to  Advances   —  304 

Subsequently    Acquired    Property     —  Siii 

Title  to  Property  Described  in  Chattel —  298 

Transfer  of  Stock  to  Secure  Loan  ia   —  298 


INDEX.  10r>l 

MOBTOAOE— OKNERATi    NOTE  — Continnr d.  No.     Page. 

Unrecorded  Effect  of   —  297 

Void,  When   —  297 

What  >s —  303 

NEGOTIABLE  INSTEUMENTS.     Sec   Bills;   Bond.s;    Prom- 
issory Notes;  Protest. 

Protest  of  for  Nonpaymmt    47D  337 

Protest  of  for  Nonpayment    480  338 

Protest  of  for  Nonpayment    4'^!  3.39 

Protest  of  for  Nonpayment    4S2  339 

Protest  of  for  Nonpayment    483  340 

Protest  of  for  Nonpayment    484  341 

Protest  of  for  Nonpayment 4S5  341 

NOTICE.     See    Affidavit;    Lien;    Mining;    Ordur;    Petition; 
Protest. 

Account,  Settlement   of    1291  746 

Adverse  Claim — Plaintiff  to   12S.5  744 

Adverse    Claim — Plaintiff   to    1208  710 

Adverse  Party,  Award  to  be  Served  on,  of  Filing 71  52 

Agreement  to  Furnish  Material  to  Contractor  of 375  271 

Annual  Meeting,   of    217  163 

Annual  Meeting,  Election  of  Directors,  of 21S  1G3 

Annual  Meeting o^g  jg^ 

Annual    Meeting    220  164 

Appeal,  of   1293  747 

Application,  Appraisers  to  Appraise  Value  Homestead.  .  272  223 

Application  for  Change  of  Name,  of 212  163 

Application  for  Change  of  Name,  of 213  163 

Application — Discharge  from  Imprisonment  for 1320  760 

Application,   Disincoqwrate   to    1319  760 

Application  to  Sell  Homestead  of  Insane  Person,  of....  283  228 
Application  of  Husband  of  Insane  Wife  to  Sell  Home- 
stead     282  227 

Application,  Letters,  for   1289  745 

Application — Mortgage  by  Church   431  313 

Application   to   be   Restored   to   Premises,   of 362  257 

Application,  Society  to  Effect  Loan  by  Mortgage,  of...  1292  747 

Application,  United  States  Patent  for— Form  H,  of 399  284 

Application,  Vacate  Arrest   1207  710 

Application  for   Voluntary  Dissolution,   Clerk   by 204  158 

Arbitrators  of  Their  Appointment,  to   58  52 

Architect's  Lien,  Reputed  Owner  of,   to 378  272 

Arrest,  Plaintiff 1-00  708 

Arrest.  Plaintiff,  of   l^f  763 

Aesessment,  Corporation "-^  ^"' 


1052  INDEX. 

NOTICE— Continned.  No.     Page. 
Assessment,  Time  and  Place  Where  Made — Inheritance 

Tax   1330  765 

Assignee,  Debtor  of.  Election — Sent  by  Mail,  of 105  91 

Assignee,  Lien  of   Attorney,   of 382  273 

Assignee  of  Lien  of  Servant   383  274 

Assignment,    Creditors,   to    106  92 

Attachment— Sheriff 's '. 1294  748 

Attachment  of  Stocks— Sheriff 's  1297  749 

Award,  Motion  to  Correct,  of   74  72 

Case  has  been  Transferred   1287  745 

Case  Set  for  Trial 1288  745 

Change  of  Place  of  Business 209  160 

Church  to  Mortgage 431  313 

Claim    Disputed 1314  758 

Claim  Disputed 1199  707 

Claim  Disputed  by   Creditor    1318  760 

Claim  Disputed   by   Creditor    1197  707 

Claim  Disputed,  Defendant  by    1315  759 

Claim  Disputed,  Defendant  by   1198  707 

Claim  Laborers  of,  Creditor  to   13 17  759 

Claim  of  Laborer,  Officer  to 1316  759 

Claim  of  Laborer,  Officer  to   1195  706 

Claim,   Location   of   Placer,   of    391  278 

Claim,   Location  of   Quartz,   of    392  278 

Completion,   Work,   of    381  273 

Contractor  to  Owner 375  271 

Creditor,  Claim  Disputed  by  1318  760 

Creditor,    Claim   Disputed    by    1197  707 

Creditor,  Laborer 's  Claim  of,  to 1317  7;)<^ 

Creditor,  Laborer 's  Claim  of ,  to   1196  708 

Creditors,  Assignment,  to 1^6  H^ 

Creditors,  to 1296  7*9 

Creditors   to — Affidavit    of    Publication    of 620  426 

Death,  Plaintiff,  of 1298  749 

Decision  of   1286  744 

Deei^on  of    12^J3  709 

D«fendant,  Claim  Disputed  by   1315  759 

Defendant,  Claim  Disputed  by    1198  707 

Defendant  Excepts  to   Suilicieucy   of   Sureties 12U4  709 

Defendant— His  Sureties  Must  Justify   1205  709 

Delinquent   Sale    Notice    225  165 

Deposition,  Taking  of 1322  761 

Deposition,  Taking  of    1323  762 

Deposition  to  Take   1325  763 

Directors '  Meeting   222  165 


INDEX.  lOr,.? 

NOTICE— rontiTined.  No.  Pago. 

Disi'liarge,  IinprigoDment,  Application   for 1320  760 

Disincorporate,   Application    to    1319  760 

Ejectment,  Pendency  of  Action   of 1303  752 

Election,   Directors  of — Annual   Meeting    21 S  163 

Election  of  Assignee  of  Debtor  Sent  by  Mall    ln;>  91 

Exception,  Sufficiency  of  Sureties  to 1209  750 

Executor,  Suspension  of    132S  764 

Foreclosure    L.ien    of— Sheriff's    Sale    1312  757 

Foreclosure  Mortgage   of — Sheriff's  Sale 1311  756 

Foreclosure — Pendency  of  Action   1304  752 

Guarantors,  Surety — Defend  Action  on  Bond  Signtd  by 

Surety   and    Guarantor,    to 1327  764 

Hearing,  of 59  53 

Imprisonment,  Application  for  Discharge  from 1320  760 

Improvements,  Owner  not  Responsible    379  272 

Improvements,    Owner    not    Responsible     380  272 

Inheritance  Tax — Time  and  Place  Where 1330  765 

Inheritance  Tax — Treasurer — District  Attorney 1331  765 

Inheritance  Tax — Trust  Co.  to  Couuty  Treasurer 1332  766 

Intended  Purchaser — Person  in  Possession  Claims  Inter- 
est, to    369  257 

Intention,  New  Trial,  to  Move  for 1295  748 

Intention,    Sole    Trader    to   Become 1321  761 

Justification  of  Sureties 1300  750 

Land,  Sale  of— Motion  to  Set  Aside 1301  751 

Landlord — To    Suit    360  256 

Lease,  Covenants  of,  to  Perform 363  257 

Lease,   Terms    of,    Change    of    365  258 

Letters,    Application    tor 1289  745 

Lis  Pendens    1304  752 

Lis  Pendens 1305  752 

Loan,  Application  of  Society  to  Effect,  by  Mortgage..  1292  747 

Location  of  Placer  Claim 391  278 

Location  of   Quartz  Claim    392  278 

Lien  of  Attorney,  Assignee  to   382  273 

Lien,  Laborer 's,  Reputed  Owuer  to 377  271 

Lien,    Notice    to    Oliicer    of    384  274 

Materials  of — Furnished  Contractor,  Reputed  Owner,  to  376  271 

Meeting,  Annual    217  163 

Meeting,    Annual    218  163 

Meeting,  Annual    219  164 

Meeting,  Annual 220  164 

Meeting,   Directors '    222  165 

Meeting,  Special,  of  Stockholders    221  164 

Mortgage,  Application  of  Society  to  Eiloct  Loan  by....  1292  747 


1054  INDEX. 

NOTICE— Continued.  No.     Page. 

Motion  of 1302  751 

Motion   to   Correct   Award    74  72 

New  Trial,  Intention  to  Move  for   129.3  748 

Occupant— Real  Estate,  to 1209  711 

Officer    to — Claim    of    Laborer    1316  759 

Officer  to — Claim  of  Laborer   1195  706 

Officer   to   Claim,   Laborer's,   Creditor   Disputed   by 1197  707 

Officer  to — Claim  is  Disputed  385  274 

Officer  to — Claim,  Laborer's  Defendant  Disputed   by..  1198  707 
Owner  that  He   Will   not  be   Responsible   for  Improve- 
ments, by   379  272 

Pav  Rent  or  Surrender  Possession,  to 364  257 

Pendency    of    Action,    Ejectment    of 1303  752 

Pendency   of   Action,   Foreclosure    of    1304  752 

Pendency  of  Action,  Quiet  Title 1305  753 

Personal  Property,  Sale  of   1307  754 

Personal  Property,  Sheriff 's  Sale  of 1313  758 

Person    in    Possession    Claims    Interest — lutendcd    Pur- 
chaser to 369  257 

Plaintiff  to,  Adverse   Claim    1285  744 

Plaintiff  to,  Adverse  Claim   1208  710 

Plaintiff,  Arrest  of   1326  763 

Plaintiff.   Arrest    of    1200  708 

Plaiatiff,  Death  of 129S  749 

Plaintiff,   Justification— Sureties    1206  710 

Plaintiff,  Substitution  of   1310  756 

Plaintiff,  Substitution,  Party  Defendant   of 1201  708 

Posting  of— Affidavit 621  427 

Posting  of— Affidavit   622  428 

Postponement,   Sale,   of    1329  765 

Premises,   of  Quitting— By   Tenant    361  256 

Quiet  Title,  Pendency  of  Action  to 1305  7.53 

Quit  by  the  Landlord,  to   360  256 

Quitting  Premises  by  Tenant  361  256 

Real  Estate,  Sale  of,  Auction IS'S  755 

Real   Estate,   Sale   of   Postponed    1306  753 

Reputed   Owner  of   Architect 's   Lien,   to 378  272 

Reputed  Owner  of  Laborer's  Lien,  to 377  271 

Reputed  Owner  of  Materials  Furnished  to  Contractor,  to  376  271 

Sale,   Animal    of — Lien    387  275 

Sale.  Day  for  Hearing  Return  of   1308  755 

Sale  of   Land — Motion   to   Set   Aside    1301  751 

Sale  of  Personal  Property    1307  754 


INDEX  1055 

KOTICE — OontTTinrd.  No.     Page. 

Sale,    Postponemeut    of    1329  765 

Bale  of  Real  Estate — Auction   1309  755 

Sale   of   Real    Estate   Postponed l?,m  75.3 

Sale — Trustees    203  215 

Settlement,  Account,  of   12'^n  740 

Sole  Trader,  Intention  to  Become llill  7G1 

Special   Meeting  of   the   Stockholders,   of    i'J!  164 

Stocks,    Attachment    of.    Sheriff 's     1207  749 

Substitution,   Plaintiff's,   of    i:UO  7.^6 

SabstitTition,  Plaintiff's,  of    12nl  70<* 

Sufficiency  of   Sureties,   Exception   to 1239  750 

Surety  to  Guarantors  to  Defend  Action  on  Bond  Signed 

by    Surety    and    Guarantor    1.^27  7P4 

Sureties,  Justification  of   1300  750 

Terminating — Tenancy  at  Will  of 367  259 

Terminating  Tenancy   366  25S 

Time   and   Place   of   Hearing  Petition    273  224 

Time  and  Place  "Where  Assessment   will  be  Made — In- 
heritance  Tax    1330  765 

Time,  Will,  for  Proving    1290  746 

Treasurer — District  Attorney,  Inheritance   Tax    1331  765 

Trial— Case   Set   for    1288  745 

Trust  Company,  to  County  Treasurer — Inheritance  Tax.  1332  7G6 

Will,   Time   for   Proving    1290  746 

Witness  Out  of  State — Motion   for   Commission   to   Ex- 
amine      1324  7C2 

Work— Completion  of   3S1  273 

GENERAL  NOTE: 

Account  Rendered   for  Settlement  of —  746 

Appeal,   of  Filing  with    Clerk    —  747 

Arrest,   of    Civil    Action    in —  763 

Contents    of    on    Appeal     —  747 

Creditors,   to,   Contents   of    —  749 

Ejectment — Lis    Pendens     —  752 

Foreclosure   of   Mortgage — Lis   Pendens —  752 

Foreclosure — Sheriff 's  Sale    —  756 

Further,  to  be  Given  on  Settlement  of  Account....  —  746 

Lis  Pendens —  752 

Motion,  of,   Grounds  upon   Which  Based —  752 

New    Trial— Contents    of     —  74S 

New  Trial — Grounds  of    —  748 

New   Trial — Service   of    —  748 

New    Trial — When    Given —  748 

Posting — Application  for  Letters —  745 

Publication — Application  for  Letters —  746 

Quiet  Title,  Action  to — Lis  Pendens —  752 

Sale   of  Per.sonal    Property — Estates    —  754 

Sale,   Postponed,    of    —  '^53 

Sale  of  Real  Estate,  Auction  at  E.-itutes —  755 


1058  IKDEX. 

NOTICE — GENTTRAL  NOTICE — Continaed.  No.  Page. 

Settlement   of   Account,    of    —  746 

Substitution  of  Plaintiffs    —  756 

Time  Set  for  Hearing  Application  for  Letters —  74:6 

Time  of  Posting  Application  for  Letters. —  745 

Time  of  Publication  on  Application  for  Letters....  —  746 

Time  Runs  from  Date  of  Service   of —  744 

OEDEB.     See  Affidavit;  Notice;  Petition. 

Account — Order  Directing  Surviving  Partner  to  Bender  1338  769 

Account — Referee — Appointed  to  Settle   1340  770 

Account    to   be    Settled,    Notice    of 1341  771 

Account — Settlement  of,   Directing  Further  Notice 1339  769 

Administrator's  Agreement   to   Compound  with   Debtor 

Approving 1348  774 

Administrator,  Appointing    1368  784 

Administrator,   Appointing — Will   Annexed — Executor's 

Right  Forfeited 1455  832 

Administrator — Contempt — Order   of   Court,   Disobeying  1392  797 
Administrator  to  Execute  Conveyance — Possession  Sur- 
rendered     1346  773 

Administrator  to   Execute   Lease    1349  774 

Administrator's   Payment   of   Debt   Without   Creditor's 

Affidavit,   Approving    1345  772 

Administrator — Property     not     Appraised — Nonremoval 

to   Show   Cause    1363  781 

Administrator,  Removing  After  Contest  of  Account...  1354  777 

Administrator,    Security    Further    to    Give 1369  784 

Administrator,  Special,  Appointing   1364  782 

Administrator,  Special,  Appointing   1365  783 

Administrator,  Spee-al,  Appointing   1366  783 

Administrator,  Suspending  Powers — Wasted  Estate 1367  783 

Agent,  Appointing,  to  Take  Possession  of  Real  Estate — ■ 

Benefit  of  Nonresident  Distributee    1380  791 

Application  for  Appointment — Guardian 1403  803 

Application  for  Letters  and  Contest  for  Letters  will  be 

Heard    Together    1351  775 

Application,  Partition  to  be   Given,   Notice   of 1424  815 

Appraiser,  Appointing — Inheritance  Tax 1333  766 

Appraisers,  Appointing 274  224 

Appraisers,  Compensation  of.  Fixing  281  227 

Appraisers,  Setting  Report  of  for  Hearing 301  234 

Appraisers,    Confirming   Majority    Report    of 302  234 

Appraisers,   Rejecting   Majority   Report   of 303  234 

Arrest,  Civil  Cases 1336  768 

Arrest — Insane  Person 1 3.^4  767 

Arrest — Summons,   on    ;....  1246  725 

Arrest— Sureties,  by 1335  767 


INDEX.  1057 

ORDER — rontinnrd.  No.  Pag«. 

Arrest,  Sureties,  by 1216  714 

Assessment,  Rescinding   224  165 

Assistance,  Writ  of 1337  769 

Attachment,  Administrator  vs. — Contempt 1391  797 

Award,  Amending    76  72 

Award,    to    Sliow    Cause    Why    It    Should    not    Ixj    Va- 
cated     77  72 

Award — Vacating — Ordering  a  Rehearing    78  73 

Cause  Transferring 1449  829 

Change  of  Name,  Publication  of 214  163 

Changing  Name    216  163 

Citation  to  Banker  et   al. — To   Recover  Unclaimed   De- 
posit,   Directing    1382  792 

Citation,  Issue  to — Inheritance   Tax    1383  793 

Civil    Cases,    Arrest    1336  768 

Claim,  Disputed,  Contingent,  not  Due — Paid  into  Court  1371  785 

Claim,  Keferred,  Referee   1399  801 

Commissioner    Appointed — ^Partition    1423  814 

Commission,  Deposition,  To  Take   1375  788 

Commission,  Deposition,  to  Take 1376  788 

Community  Property,  Estate,  Declaring 1370  785 

Compensation  of  Appraisers  Fixing   281  227 

Contempt — Administrator    Committing    for    Disobeying 

Court  Order 1392  797 

Contempt — Attachment    vs.    Administrator 1391  797 

Contempt — Cause  to  Show  in  Defense 13S6  794 

Contempt — Conviction    of     1389  796 

Contempt — Conviction   of    1388  795 

Contempt — Executor  Appointing  in  Place   of   Executor 

Removed   Because   of    1394  799 

Contempt — Juror,  Defaulting,  in 1385  794 

Contempt — Punishment  for.  Cause  why  not  to  Show 1384  793 

Contempt,  Purged  of    1390  796 

Contempt — Revoking  Letters  After  Commitment  for...  1393  798 

Contempt— View  of  Judge— Facts    1387  795 

Contract  to  Purchase  Land — Sale  of,  Confirming 1441  824 

Conveyance — Administrator  to  Execute    1346  773 

Creditor 's  Claim— Allowing  Payment    1397  800 

Creditors,  Notice  to    1396  799 

Creditors— Notice  to  Established   1024  611 

Creditor 's    Notice — Publication    of    1395  799 

I>ajr — Set — Application  for  Letters  of  Guardianship...  1408  806 

Debtor,  Examined  to  be    1'''2  7S6 

Odator,   Defendant    of — Examination    l-lo  713 

Hew  Forma — 67 


1058  INDEX 

OEDER — Continued.  No.  Page. 

Debtor  of  Judgment  Debtor  to  be  Examined    1.374  787 

Debtor,  Property  of,   to   be   Applied 1373  787 

Debts,  Payment  of,  for   1398  800 

Denying  Petition  for  Order  Directing  Administrator  to 

Convey  Land 1347  773 

Deposition,   Commission    to    Take    1375  788 

Deposition,  Commission  to  Take    1376  788 

Deposition  of  Witness  to  Will,  to  Take 1594  963 

Deposits,  Unclaimed  to  Eecover,  Citation  to  Bank,  Di- 
recting    1382  792 

Disineorporation — Notice   to   be   Given 1381  791 

Distribution,   Partial    1377  789 

Distribution,   Partial    1378  789 

Distribution,  Petition  for,   on    1379  790 

Division  of  Homestead  Land,  Directing 279  22G 

Entry  of   Judgment    on   Award,    Staying 75  72 

Estate  Community  Property,  Declaring    1370  785 

Estate,    Wasted — Administrator    Suspended     to     Deter- 
mine      1367  783 

Examination — Debtor  of  Defendant 1215  713 

Examination    of    Party    1214  713 

Executor  Appointing  in  Place  of  Executor  Removed — 

Contempt   1394  799 

Executor   to    File    Statement 1361  780 

Executor  to   Invest  Moneys  in  His   Bonds 1343  772 

Executor  to   Invest   Moneys,   Publication   of   Notice   of 

Application   for   Order   Directing    1344  772 

Executor,  Notice   of  Proceedings  to   Eemoval  of   to   be 

Given  by  Publication  and  Mail 1357  773 

Executor  to  Pay  Legatee  Share  of  Estate 1342  771 

Executor,  Removing  for  Neglecting  to  Give  Notice   to 

Creditors    1362  781 

Executor— Eight    Forfeited 1355  777 

Executor   to   Show   Cause   Why   Letters   Should    not   be 

Revoked    1360  780 

Executor,  Suspended,  Notice  to  be  Given   to 1359  779 

Executor,   Suspending    1358  779 

Executor,  "Without  Bond"  to  File  a  Bond 1350  775 

Executors,  One  of  Two  Absent  from  State,  Establishing  1353  776 

Family  Allowance — Property  for  Use   1401  802 

Family— Estate  Paid  to  It   1402  803 

Family — Support  Until  Inventory  Returned 1400  801 

Further    Notice    Upon    Settlement    of    Account    1339  769 

Guardian,  Application  for  Appointment — Notice  of....  1403  803 

Guardian 's  Application — Sale  of  Real  Estate 1434  820 


INDEX.  1059 

ORDER — Continued.  No.  Page. 

Guardian  Appointr^d    140o  804 

Guardian    Appointed — Minor    1407  805 

Guardian,  Incompetent  Person   1409  807 

Guardian,  Letters  of  Administration   to 13;j2  776 

Guardian,  Nonresident,  Lease  to  Remove  Ward  'a  Prop- 
erty     1410  807 

Habeas    Corpus,    Granting    1411  808 

Homestead,  Directing  to  be  Sold — Suri>lu8  Applied 278  225 

Homestead,  Insane  Wife's,  Permitting  Sale    285  228 

Homestead  Land,  Division  of.  Directing 279  276 

Homestead — Setting   Apart — Surplus   Land 280  226 

Inheritance  Tax — Appraiser  Appointing   1333  766 

Inheritance  Tax — Citation  to  Issue  in 1383  793 

Inheritance  Tax — Values,  Fixing    1458  833 

Injunction    1413  809 

Injunction  for — to  Issue 1414  810 

Insane  Person — Arrest  for    ^ 1334  767 

Inspection   for    1415  810 

Inspection  for 1212  712 

Intervention,  Allowed   1416  811 

Intervention,  Allowed 1213  712 

Judgment  on  Award,  Staying  Entry  of   75  72 

Juror,    Defaulting — Contempt     1385  794 

Lease,  Administrator  to  Execute    1349  774 

Lease,  Real  Estate,  Cause  why  not,  to  Show 1417  811 

Letters   of  Administration   to   Guardian   to   Person    En- 
titled     1352  776 

Letters,  Application  and  Contest  for  Heard  Together..  1351  775 

Letters  of  Guardianship,  Day  for  Hearing  Application  1408  806 

Letters   Revoked    1356  778 

Letters,  Revoked,   Executor  to  Show  Cause   why   not..  1360  780 

Letters,   Revoking,  After  Commitment  for   Contempt..  1393  798 

Life   Estate   Terminated    1418  811 

Majority   Report   of   Appraisers,   Rejecting 303  234 

Mines,  Sale  of.  Cause  to  Show I435  821 

Minor,  Guardian  Appointed — Cause  Inserted  at  Minor's 

Request 1407  805 

Minor,    Sheriff    to    take    from    Custody 1406  805 

Minor,    Temporary    Custody,    Providing    for 1404  804 

Mortgage    1420  813 

Mortgage — Application    by    Estate    to    1419  812 

Mortgage — Cburch  to  Give  Notice   432  314 

Mortgage — Clause   "A"    1421  813 

Mortgage — aause"B"    1422  814 

Name,    ChaJiging    21G  1G3 


1060  INDEX, 

ORDEH— Continned.  No.     Page. 

Notice  to  Creditors,  Executor  Eemoved  for  Neglecting  1362  781 

Notice  to  Creditors  Established   1024  611 

Notice  to  Creditors  to  be  Published  1395  799 

Notice,    Publication    of    202  157 

Partial  Distribution,  for   1377  789 

Partial  Distribution,  for   1378  789 

Partition — Commissioner  Appointed   1423  814 

Partition,    Notice    of    Application    for 1424  815 

Payment,   Debts   of,   for    1398  800 

Payment   of    Debt,    Administrator — Without    Creditor's 

Affidavit   1345  772 

Permitting  a  Sale  of  Insane  Wife's  Homestead 285  228 

Personal   Property,   Perishable,   to   SeU    1427  816 

Personal   Property,   Sale    1426  815 

Personal  Property,  Sale — Approving   1431  818 

Personal  Property,   Sale   of   upon   Petition   for   Sale   of 

Realty 1428  816 

Personal  Property,   Sale  of— Time 1430  817 

Petition — Administrator  to  Convey,  Denying 1347  773 

Petition  for  Distribution,  on    1379  790 

Property,   Appraised,   Administrator   Neglecting — Cause 

for  Nonremoval    1363  781 

Property,  Debtor  of,  to  be  Applied 1373  787 

Property,  Sale  of  all  Belonging  to  Estate 1429  817 

Publication,  of  Change  of  Name   214  163 

Publication  of  Notice,  of 202  157 

Publication,  Notice  of  Application  for  Order  Directing 

Executor    to    Invest    Moneys 1344  772 

Publication,  Summons,  of   1446  827 

Punishment,  Contempt  for,  to  Show  Cause  why  not....  1384  793 

Eeal  Estate,  Lease  of,  to  Show  Cause  why  not 1417  811 

Real  Estate,  Sale  of   1437  821 

Real  Estate,  Sale  of,  Administrator  by    1438  823 

Real  Estate,  Sale  of — Cause  to  Show 1432  819 

Real  Estate,  Sale  of.  Cause  to  Show 1433  819 

Real  Estate,  Sale,  Confirmed 1442  825 

Real  Estate,  Sale  of.  Guardian's  Application 1434  820 

Eeal    Estate,    Sale    of — Guardian    to    Make 1439  823 

Real   Estate,   Sale   of — Hearing,   Day   Mxed 1440  824 

Real  Estate,  Sale — Vacated    1445  827 

Real  Estate,  Sale  of— Will  by  Authority  of 1443  826 

Real   Estate,    Sale    of.    Without    Notice 1436  821 

Referee — Account — Appointed  to  Settle 1340  770 

Release   Levy    1222  715 

Report  of  Appraisers,  Setting  for  Hearing 301  234 


INDEX.  lOCl 

ORDER— Continued.  No.     Page. 

Ki'iiort,    Majority    Appraisers    of,    Ck)nf5rminj» 302  234 

Rescinding  Assessment 224  165 

Resignation  of  Testamentary  Trustee,   Accepting 142.5  R15 

Sale — Contract    to    Purchase    Land,    Confirming 1441  824 

Sale— Mines  of,  Cause  to  Show   143.5  821 

Sale — Open   Court,   Made   in.   Confirming 1444  826 

Sale — Perishable  Personal  Property  1427  816 

Sale— Personal  Property 1426  815 

Sale — Personal  Property,   Approving    1431  818 

Sale — Personal    Property — Sale    of    upon    Petition    for 

Sale  of  Realty 142S  816 

Sale— Personal  Property,   of— Time   of 1430  817 

Sale— Property,   all,   Belonging   to   Estate 1429  817 

Sale— Real  Estate,  of  1437  821 

Sale— Real    Estate,    of,    Administrator    by 143S  823 

Sale— Real  Estate,  Authority  of  Will,  by 1443  826 

Sale — Real  Estate — Cause  to  Show    1432  819 

Sale — Real   Estate — Cause    to    Show 1433  819 

Sale— Real  Estate — Confirmed    1442  825 

Sale — Real  Estate,  of — Guardian's  Application 1434  820 

Sale — Real  Estate — Guardian  to  Make 1439  823 

Sale— Real  Estate,  of— Hearing— Day   Fixed 1440  824 

Sale — Real   Estate— Vacated    1445  827 

Sale— Real   Estate— Without   Notice 1436  821 

Service  of  Notice — Heirship  Determined,  Establishing.  .  1412  809 
Setting    Apart    Homestead    and    Permitting    Execution 

Against  Surplus  Land    280  226 

Sheriff,  Minor  to  Take  from   Custody    1406  805 

Statement,  Executor  to  File   1361  780 

Substitution  of   1217  714 

Summons — Posting  by    1.59.5  964 

Summons,  Publication  of 1446  827 

Sureties,  Arrest  by   1335  767 

Surviving  Partner,  to   Render  Account,   Directing 1338  769 

Testamentary  Trustee,  Resignation  of  Accepting 1425  815 

Time   Extending    1447  828 

Time  Shortened    144S  829 

To  Show  Cause  why  Award  should  not  be  Vacated  and 

Staying   the    Entry   of   Judgment    77  72 

Trustee   (Under  Will)   Appointing   1456  833 

Vacating   an   Award   and   Ordering   a   Rehearing 78  73 

Values,  Fixing — Inheritance  Tax 1458  833 

Will,  Contest,  Attorney  to   1451  830 

•Will — Witness — Deposition    of   to   Take 1594  963 

"Will,  Person  Who  Possesses  to  Produce 14."2  830 


1062  INDEX. 

ORDER — Continned.  TSTo.  Page. 

Will,   to   Probate,   Admitted 1454  831 

Will,  to   Probate,   Admitted 1453  831 

Will,  Probate  of,  Revoked 1457  833 

Will,    to    Produce    1450  829 

GENERAL  NOTE: 

Account  Referred,  for  Settlement — Estates —  770 

Account — Settlement   Set  for  Hearing —  771 

Administrator — Appointing —  784 

Administrator  to   Show  Cause  why  He  Should  not 

be  Removed — Appraisement  not  Made —  781 

Arrest — Action  to   Recover  Money  Embezzled,  ete.  —  768 

Arrest — Action  to  Recover  Personal  Property —  768 

Arrest — Contents    of    Affidavit    —  768 

Arrest — Civil     Cases — Defendant     Departing     from 

State   to    Defraud    —  768 

Arrest — Debt  Contracted  Fraudulently   —  768 

Arrest — Disposal  of  Property  to  Defraud  Creditors  —  768 

Arrest— Fraud  for   —  768 

Attorney — Service  on  in  Contempt  Proceedings...  —  794 

Authority  of  Court  Over  Mortgages  by  Estate....  —  814 

Bond  to  File  by  Executor   —  7f 5 

Bond  on  Partial  Distribution,  for —  771 

Cause    to    Show   why   Person    Should   not    be   Pun- 
ished for  Contempt   —  794 

Children  to  Take  Entire  Estate —  803 

Citation,   for — Administrator    to    Answer   for    Con- 
tempt    —  797 

Claim  Approved  Without   Affidavit —  773 

Contempt — Administrator  Fails  to  Render  Account.  —  709 

Contempt — Cause  to  Show  in  Defense  of —  794 

Contempt — Conviction  of  Appeal,  as  a  General  Rule 
the  Judgment  and  Orders  of  Court  are  Final  and 

Conclusive    —  796 

Contempt — Conviction  of — Appeal  Lies —  796 

Contempt — Conviction  of — Appeal  Will  not  Lie...  —  796 
Contempt — Conviction    of — Appeal    Lies    When    It 

Appears    the   Court   Exceeded   Its   Jurisdiction —  —  796 
Contempt — Conviction  of  Appeal  will  not  Lie   Un- 
less the  Case  is  Within  a  Certain  Rule —  796 

Contempt — Conviction  of — Appeal  Does  not  Lie  in 

Any  Case   —  796 

Contempt — Letters    Revoked    for   Disobeying —  798 

Creditors — Additional — Notice    to,    for —  800 

Creditor 's    Claim — Allowing   Payment    —  800 

Creditor 's  Claim — Barred  When    —  800 

Creditor 's  Claim — Must  be  Prescntrd —  800 

Creditor 's  Claim — Notice  not  Given —  800 

Creditors,  Notice  to,  for   —  799 

Creditor  Out  of  State   —  800 

Debtor  to  be   Examined    —  786 

Debts,   Sale   to   Pay    —  818 

Distribution — May    be    on    Petition    of    Interested 

Person    —  790 

Distribution,    Partial    —  771 

Distribution  ajid  Partition —  790 


I^  DEX.  10C3 

OKDEU— GRISTRRAL  NOTE— Continued.  No.  Page. 
Distribntion — On   Petition   of   Exe<ator,   or   Adnrin- 

istrator    —  790 

Establishing  Pact  that  an  Eieeutor  is  Absent  from 

the  State —  776 

Executor  to  Give  Further  Security    —  7S5 

Executor  to  Pay  Legatee  His  Share  of  Estate —  771 

Executor   to   Show   Cause   why   His   L»etter3  Should 

not    be    Revoked    —  780 

Extending  Time   —  828 

Family    Allowance    —  802 

Forfeiting  Executor's  Right  to  Letters    —  778 

Furniture  Allowed   to  Family    —  802 

Guardian  of  Minor  Delivered  from  Temptation....  —  806 

Guardian  of  Minor  to   have  Letters —  776 

Guardian 's  Sales — Reasons  for  to  be  Stated  in ...  .  —  824 

Homestead  to  Family  as  Residence —  802 

Incompetent  Person  's — Estate  may  Mortgage   Real 

Estate    —  814 

Injunction  the  Same  Everywhere   —  809 

Insurance  Clause  in  Mortgages  by  Estates —  814 

Lease  of  Land  by  Estate — Service  of  Notice,  for..  —  811 

Lease   to    be    Made — Estates    —  775 

Legacies — Sale  to   Procure  Funds  to  Pay —  818 

Minor,    Temporary    Custody    of    —  804 

Money   Allowed   for   Support   of   P^mily —  802 

Mortgage  by  Estate — Clause  "A"    —  813 

Mortgage   by   Estate — Clause    "B"    —  814 

Mortgage — By  Estate — Power  of  Court  in —  814 

Mortgage  by  Estate — Service  of  Notice  of  Applica- 
tion   to —  813 

Mortgage  of  Real  Elstate  by  Estate —  812 

Notice    to    be    Given    of    Proceedings    to    Remove 

Eieeutor —  773 

Notice  to  be  Given  of  Proceedings  to  Suspend  Ex- 
ecutor    —  779 

Partition    and    Distribution    —  790 

Partial  Payment  of  Debts —  801 

Payment  of  Debts,  for  —  800 

Production     of     Incompetent     Person     Before     the 

Court   —  807 

Removing  Executor    —  777 

Removing  Executor  for  Neglecting  to  Give  Notice 

to    Creditors    —  781 

Residence — Homestead    Allowed   for    —  802 

Return   of   Guardian 's   Sale    —  S24 

Revoking  Letters   and   Appointing  Other   Adminis- 
trator      798,  799 

Sales  Confirmed    —  825 

Sale  of  Entire   Personal  Property  of   Estate —  SIS 

Sale  of  Personal  Property — Time  of    —  818 

Sale  of  I'roperty  to  Pay  Debts —  816 

Sale  of  Real  Estate — Cause  to   Show —  819 

Sale  of  Real  Estate  by  Guardiau —  S20 

Sale  of  Real  Estate — How  Conducted  Under —  822 

Service   of   on   Corporation — Contempt   Proceedings  —  79-i 

Service    of    Notice    to    Sell    Real    Estate —  820  f 

Sheriff  to  Take  Minor  into  Custody —  805 


1064  INDEX. 

OEDEB — GENERAL  NOTE — Continued,  No.  Page. 

Special  Administrator  Appointing —  782 

Surviving  Partner  to   Bender  Account —  769 

Suspending  Executor —  779 

Suspending  Executor  Until  Hearing  of  Application 

for  Further  Security —  78i 

Time  Extended   —  828 

"Ward 's  Property  Removed  from  State —  808 

Widow  to  Take  Entire  Estate,  When —  803 

Widow  and  Children  to   Take  Entire  Estate —  803 

Will  to   Contest,  by  Attorney   —  830 

Will,  to  Produce —  830 

Wills  to  be  Produced —  831 

OKDZNANCES.     See    Complaints    and    Pleadings    in    Minor 
Courts;  Justice's  Court. 

PATENT.     See   Assignment;    Oath;    Petition. 

Administrator,  Petitions  for 436  315 

Application  for  Reissue — Oath  to   445  318 

Assignee — By  Inventor  for   435  315 

Assignment   of   Interest    in   Letters   Patent 450  320 

Assignment  of  Letters  Patent   449  320 

Assignment  of  Letters  Patent   455  332 

Assignment  of  Letters  Patent   456  332 

Assignment — Territorial   Eight    451  320 

Assignment  of  Invention  Before  Patent 448  319 

Caveat 446  319 

Composition  of  Matter — Specification   for 443  317 

Design — Petition   for  Letters  for    439  316 

Design — Specification  for 444  318 

Executor   Petitions   for    437  315 

Invention   Assigned  Before  Patent    448  319 

Letters  Patent — Assignment  of   449  320 

Letters   Patent — Assignment   of    455  332 

Letters  Patent — Assignment  of  456  332 

Letters  Patent — Assignment   of  Interest   in 450  320 

License — Not  Exclusive   453  321 

License— .Shop   Right    452  320 

Machine — Specifications  for   441  316 

Mining  Ground  for   398  283 

Oath — Applicant  for  Reissue   445  318 

Petition  by  Administrator  for    436  315 

Petition,  Executor,  by   43r  315 

Petition   for  Letters   for   Design    439  316 

Petition  for  Reissue   438  316 

Petition — Inventor   for   Assignee    435  315 

Petition — Joint  Inventors,  by   434  315 

Petition — Sole    Inventor,   by 433  315 


INDEX.  1065 

PAITNT— Continnrd.  No.  Pa^. 

Power  of  Attorney,  for   440  318 

Process — Specifications    for    442  317 

Reissue — Petition  for   438  316 

Royalty — License  with 453  321 

Shop  Right — License 4:"2  320 

Specification    447  319 

Specification — Composition    of    Matter    443  317 

Specification   for  Design    444  31 S 

Specification   for   Machine    441  316 

Specification  for  Process   442  3 1 7 

Territorial  Grant — Assignee   451  320 

Trademark,    Transfer    of 454  32 1 

PERSONAL  PROPERTY,   Sale   of    1527  906 

»ETITION.     See   Affidavit;    Notice;    Order;    Patent;    Writ. 

Administration  of.  Continuation,  for 150S  S84 

Administration — Letters    of — For     14G6  840 

Administrator  to  Account,  Court  may  Order 1499  877 

Administrator,  by   436  31.5 

Administrator,    Appointment    of    Special 1473  84.) 

Administrator  to  Convey  Land — Order — Ob.iections  to..  1497  876 

Administrator   to    Give   Further    Security 1469  843 

Administrator   to    Give   New   Bond — Sureties    Removed 

from  State   1468  842 

Administrator — Land  to  Convey   1596  964 

Administrator — Personal  Property  to  Transfer 1597  965 

Administrator  to  Sell  Stock — Mining  Company 1484  859 

Administrator — Wili  Annexed — Former  Executor  to  Ac- 
count    1500  878 

Appraiser,   Appointment   of — Inheritance   Tax 1520  895 

Assignee,  Heir  at   Law  of — Distribution  of  Assignor's 

Share   for 1506  882 

Attorney,  District,  Citation  for — Inheritance  Tax 1519  894 

Attorney,  Treasurer's,  of — Inheritance  Tax    1521  895 

Bond— New— Order,   for    1470  844 

Church,  Mortgage,  to    1493  871 

Citation,  Complaint  vs.  Bank,  Administrator,  by 1476  847 

Citation,   for — Creditor,  by — Administrator   to   Account  1498  877 
Citation — District    Attorney,    by — Inheritance    Tax....  1519  894 
Citation  to  Show  Cause  Why  Bank  Should  not  Pay  Ad- 
ministrator    1476  847 

Contest  of  Petition  to  Probate  Will 1570  942 

Continuation  of  Administration,  for   1508  884 

Corporation,  Dissolution  of  1518  893 

Court  to  Declare  Rights  of  All  Persons   to   Estate....  1505  881 

Court,  may  Order  Administrator  to  Account 1499  877 

Creditor,  Citation  for,  by — Administrator   to   Account.  1498  87  7 


1066                                                       INDEX- 
PETITION— Continned.  No.     Page. 

Decree — Homeste-ad  Setting  Apart   1^79  851 

Decree — Homestead   Vested    in    Surviving   Wife 1509  885 

Dissolution,  Corporation,  of    1518  893 

Distribution,  for    1507  883 

Distribution,  for — Assignee  of  Heir  at  Law,  of 1506  882 

Distribution,  Partial,  for 1502  879 

Estate,  Eights  to — Court  to  Ascertain   1505  881 

Executor,   by    437  315 

Executor  to  Invest  Funds — Order,  for   1501  878 

Executor,  Land  to  Convey — Order  Directing 1496  875 

Family,   Provision   for   Support,   of    1477  850 

Guardian,   Appointment,   of    1511  886 

Guardian,  to  Assent  to  Partition  of  Land 1514  889 

Guardian — Incompetent  Person,  Appointment,   of 1512  887 

Guardian — Mortgage  Real  Estate,  Order  to,  for 1513  838 

Guardian — Order  of  Sale,  for    14S9  863 

Guardian — Sale  of  Real   Estate,  for    1488  862 

Habeas  Corpus— Writ  for   1515  890 

Heir,  Devisee,  Legatee,  Share  of  Estate,  for 1503  880 

Heir  at  Law— Share  of  Estate,  for 1504  880 

Homestead — Decree  Setting  Apart   1479  851 

Homestead — Surviving  Wife  Vested  in — Decree,  for 1509  885 

Incompetent  Person,  by — To  be  Adjudged  Competent..  1510  886 

Incompetent   Person — Guardian   Appointment,   of 1512  887 

Inheritance  Tax — Appointment  of  Appraiser,  for 1520  895 

Inheritance    Tax — Citation — District    Attorney,    by....  1519  894 

Inheritance  Tax — Treasurer's  Attorney,  by 1521  895 

Injunction,   Order   for 1413  809 

Inventor,  for  an  Assignee,  by   435  315 

Joint  Inventors,  by 4:34  315 

Lease,  Realty,  to — Executor,   Administrator,  Guardian.  1494  873 

Lease   Forfeiture   of,   Relief,   vs loi6  890 

Letters   of   Administration,    to    Revoke — Regrant 1467  841 

Letters— Foreign  Will— For    1462  838 

Letters  Patent  for  a  Design,  for 439  31« 

Letters — Nuncupative  Will,  Probate,  for 1465  839 

Letters,    to    Revoke — Petitioner    to    Appoint — Executor 

Nonresident 1475  847 

Letters,    to    Revoke — Petitioner    to    Appoint — Executor 

Removed    from    State     1474  846 

Mortgage,  to   1492  869 

Mortgage,  Church,  to   1493  871 

Qrder — Administrator  to  Convey  Land — Objections 1497  876 

Or^er— Executor  to  Convey  Land,  Directing 1496  875 

Order — Executor  to  Invest  Funds    1501  878 

Order,  for,  Guardian,  by — Mortgage  Real  Estate 1513  888 


INDEX.  1067 

PETITTON — ContimiPd.  No.  Pa^e. 

Order — New  Bond,  for 1470  844 

Order— Perishable  Personal  Property,  to  Sell 1480  853 

Order— Personalty    Setting   Apart    U78  850 

Order  of  Sale,  Guardian,  by    1489  86S 

Order,  of  Sale— One  Sale — Estate  Insolvent 1482  856 

Order— Sale  Personal  Property   1483  857 

Order— Sale  of  Real  Estate   1490  864 

Order— Sale  of  Keal  Estate — All  Persons  Join 1485  8G0 

Order — Sale    of    Eeal    Estate — All    Persons    Assent    in 

Writing 1486  860 

Order— Sale  of  Eeal  Estate — Creditor 1487  861 

Order — Sale   of   Real   Estate — Pay   Inheritance 1491  86S 

Order— Will  Concealed,  to   Produce 1461  837 

Partial   Distribution   for    15u2  879 

Partition  of  Land,   Guardian  may  Assent 1514  889 

Partner,  Surviving,  Account  to  Render 1495  874 

Perishable  Personal  Property,  Order  to  Sell 1480  853 

Personalty,  Order  Setting  Apart    1478  850 

Probate — Lost  Will,  of    1464  839 

Probate — Nuncupative  Will,  for — Letters 1465  839 

Probate — WiU,  of 1459  834 

Probate  of  Will — Contest  of   1570  942 

Probate — Will — Foreign   1462  838 

Probate — Will  of — Not  in  Possession  of  Petitioner 1460  836 

Probate — Will,  to  Revoke  1463  838 

Realty,  to  Lease — Executor,  Administrator,  or  Guardian  1494  873 

Eeal   Estate,   to   Sell — Interest,   Heirs,   of    1481  853 

Reissue   (by  the  Inventor)   for  a    433  316 

Relief  vs.  Forfeiture,  Lease   of,  for    1516  890 

Revoke — Letters  of  Administration,  to 1467  841 

Revoke — Letters     to — Petition     to     Appoint — Executor 

Nonresident   1475  847 

Revoke — Letters — Petition   to   be   Appointed — Executor 

Removed  from  State 1474  846 

Revoke — Probate   of   Will,   to    1463  838 

Sale — Order  of — One  Sale — Estate  Insolvent 14S2  856 

Sale — ^Personal  Property,   Order   of    1483  857 

Sale — Eeal  Estate  of.  Guardian  by 1488  862 

Sale  of  Eeal  Estate — Order  of — All  Persons  Join 1485  S60 

Sale  of  Eeal  Estate — Order  of — Ail  Persons  Assent  in 

Writing I486  860 

Sale    of    Eeal    Estate — Order    of— Creditor 1487  861 

Sale  of  Real  Estate — Order-Pay  Inheritance 1491  S6S 

Share  of  Estate — Heirs  at  Law,  by  1504  880 

Share  of  Estate — Heir,  Devisee  of  Legatee  by 1503  8S0 


1068  INDEX. 

PETITION— Continned.  No.     Page. 

Sole  Inventor,  by    ^^3  ^^^ 

Sole  Trader  bj   1517  892 

Special  Administrator,  Appointment  of 1473  84o 

Surety,  of — Release  from  Bond   1*71  84i 

Surety,  of— Eelmse   from  Bond    1472  845 

Surviving  Partner,  Account  to  Render   1495  874 

Will  Concealed,  Order  to  Produce   1461  837 

Will— Lost— Probate  of 1464  839 

Will — Nuncupative — Probate  for — Letters   1465  839 

Will— Probate  of 1459  834 

Will — Probate  of — Not  in  Possession  of  Petitioner....  1460  836 

Will— Probate— Foreign 1462  838 

Will— To  Revoke  Probate  of   1463  838 

Writ   for   Habeas   Corpus    1515  890 

GENERAL  NOTE: 

Administrator  to  Give  Further  Security —  843 

Bank     Officers — Examination     of     Respecting     Un- 
claimed Deposits    —  849 

Citation  for — Bank  Holding  Unclaimed  Deposit.  ...  —  849 
Concealed  Property — That  it  may  be  Delivered  to 

Administrator —  837 

Concealed  Will  to  Produce   —  837 

Declare  Rights  of  all  Persons   in  Estate,  to —  882 

Distribution   for— Bond  to  be  Given,  When 879,  880,  881 

Examination   of   Person   who   has    Concealed   Prop- 
erty of  Estate,  for —  837 

Executor  to  Give  New  Bond   —  842 

Family   Allowance — Property   Sold   to    Make —  859 

Foreign  Will  to  Probate   —  838 

Guardian  to  Sell  Land  to   Maintain  Ward 862,864 

Habeas  Corpus,  for,  Must  State  What —  899 

Letters  of  Administration  for —  841 

Lost  Will  to  Probate   —  839 

Mortgage  by  Church — What  Petition  Must  Show..  —  873 
Mortgage  by  Executor  of  Real  Estate — What  Peti- 
tion Must  Show  —  871 

Nuncupative  Will  to  Probate  —  839 

Nonresident  Executor — To  Revoke  His  Letters —  847 

Probate   of   Will   to   Revoke   and   Grant   Letter    to 

Another f'^-' 

Revoke  Probate  of   Will —  338 

Sale  of  Real  Estate  for • 861,  468 

Surety  Requests  to  be  Released  from  Bond 844,  84j 

PLEDGE. 

Note  Secured ^^^  323 

Note  Secured    ^'^^  -^^^ 

Note   Secured    459  329 

GENERAL  NOTE: 

Bids  of  Sale —  ^25 

Demand  of  Porformnnce  of  Contract —  o^i 

Evidence   of — Sale   of    224 


INDEX.  1060 

PLEDGE— OENT^RAL   NOTE— Continued.  No.  Pago. 

Ijcndor  's  Lien  Doponds  on  Possession —  324 

Lienholder  may  Pledge  His  Interest  to  the  Extent 

of  His  Lien   —  ^24 

Notice    of    Sale    —  324 

Notice  of  Sale  Waived    —  324 

Order  of  Court  to  Sell  Ri;?ht  of  Redemption —  325 

Pledgor's  Right  at  Sale   —  324 

Pledgor's  Right  to  Purchase    —  325 

Publie   Auction — Sale  at    —  324 

Redemiition— Right  of  Sale —  325 

Sale  by  Pledgee   3-4 

Surjilus  Proceeds  of  Sale  324 

To   Secure   Debt   of   Another    —  3-4 

Withdrawal  of  Security   —  324 

POSSESSION.     See  Writ. 

Writ  of 1578  944 

POWER  OF  ATTORNEY. 

Custom-house  Broker .'   ^^'^  329 

General   460  326 

Mining  Property,  to  Sell   463  328 

Patents,  of  440  316 

Power   to   Collect  Debts    466  330 

Power   to    Receive   Legacy 467  330 

Power  to  Sell  Mining  Property    463  328 

Power  to   Sell   Real   Estate    468  330 

Power  to  Sell  Stocks   464  329 

Power  to  Vote — Stockholder 's  Meeting 469  332 

Revocation  of  Power    470  333 

Special  Power 461  327 

Special  Power    462  328 

Substitution  of  Attorney 471  333 

Transfer  of  Stock,  to    229  167 

PEOBATE  HOMESTEADS.     See  Affidavit;  Decree;  Notice; 
Order;  Petition. 

Appraiser  (1)  Dissents  300  233 

Appraisers  Admeasure   and   Set   Apart 299  233 

Appraiser 's  Report  Set  for  Hearing   301  284 

Appraiser's  Report  (Majority)  Accepted  by  Court 302  234 

Appraiser's  Report   (Minority)   Adopted  by  Court 303  234 

Aiisigned   to   Widow    290  232 

Assigned  to  Widow 297  232 

Death  of  Head  of  Family   293  230 

Selected  by  Deceased — Appraisement  of 29S  232 

Separate   Property   of   Deeeaeed    29j  -31 

Support    of    Family    294  231 


1070  INDEX. 

PEOCEKDINGS      SUPPLEMENTAL      TO      EXECUTION. 

See  Affidavit;  Execution;   Order.  No.     Pago. 

Supplemental  to  Execution   500  410 

Supplemental  to  Execution   591  410 

Supplemental  to  Execution  1372  786 

PEOMISSORY  NOTE.     See  Protest. 

Flat  Loan  to  Secure  to  Corporation 474  S35 

Installment  to  Secure   476  336 

Promissory  Note    474  334 

Promissory  Note    473  334 

Promissory    Note    477  337 

Promissory  Note    47S  337 

Secured  by  Mortgage   473  335 

Secured  by  Mortgage   476  336 

GENERAL  NOTE: 

Interest  on —  334 

"L   O.   U.   $1,000,000,"   Good    —  334 

Uncertain    —  334 

Words   "Without    Grace"    —  334 

PEOOF    OF   THE    EXECUTION    OF    INSTEUMENTS    IN 

WEITING. 

See  Acknowledgment  and  Proof  of  Instruments. 

PEOTEST. 

Business,  Place  of,  Ascertained,  but  Maker  not  Found  483  340 

Certificate  of  Mailing  Notice,  of    480  338 

Certificate    that   Notice   was   Personally   Served 481  339 

Draft   Accepted—' '  Supra    Protest "    484  341 

Draft  Payable  at  Sight   485  341 

Indorser — Notice  Left  at   His  Place  of  Business 481  339 

Mailed  Notice,  of    480  338 

Maker  Cannot  be  Pound 482  339 

Maker   Cannot  be   Found    483  340 

Maker   Has    no    Known    Place    of   Business    482  339 

Master's  (Marine)  Protest— Stress  of  Weather 486  342 

Notices   Mailed    480  338 

Notices  Mailed   482  339 

Notices  Mailed 484  341 

Note  Payable  at  Particular  Place   480  338 

Notice  Personally  Served 481  339 

Notice,  Protest,  of  479  337 

Particular   Place — Note   Payable   at    480  338 

Presentation  to  Maker  Personally   481  339 

Residence,  Ascertained,  but  Maker  not  Found 483  340 

Eesidence  of  Maker  Unknown   482  339 

Sight  Draft   485  341 

Supra  Protest    4S4  341 

Weather,  Stress  of —Master 's  Protest 4S6  342 


INDEX  3071 

PEOXT.     See  Power  of  Attorney.  No.     Page. 

To  Vote  Stock 469  332 

PUBLIC  ADMTNISTEATOR. 

Appears — Sale  of  Homcstr^d  at   284  229 

Appears — Bemits  His  Pees  Voluntarily    286  229 

BFiATi  ESTATE,  Sale  of 1526  904 

BECEIPT. 

Account — In  Pull  for  496  343 

Account,   on    491  343 

For  Money  Paid    4S7  342 

For   Money  Paid    488  342 

In  Full  of  All  Demands     490  343 

Instrument  for  Record   498  344 

In  Full  for  Less  than  Amount  Due 4S9  342 

Interest   Indorsed   on   Bond   to   be 49.5  343 

Money  Paid  for  Another  492  343 

Money  Paid   to  Third  Person,   Creditor   for 494  343 

Papers  in  a  Case   497  343 

Special   Purpose,   for    493  343 

Warehouse    1600  966 

EEIiEASE. 

After  Award,  in  Full   501  344 

Condition  of,  in  Contract   504  346 

Demands  of  All   499  344 

Demands,  of  All   500  344 

Guardian,  to,  by  Ward    503  345 

Indenture  by 502  345 

Legacy   of    505  346 

Legacy  of   507  347 

Lien  on  Land — .Tudo^mont  of   508  347 

Partial,    of    Mortgage    509  348 

Satisfaction  of  Judgment   510  349 

Satisfaction  of  Mortgage 511  349 

Trust — Release  of    50G  346 

BEPLEVIN.     See  Affidavit;  Bond;  Notice. 

EEPOET,     See  Account;   Affidavit;   Order;   Notice;  Return. 

Account,   Annual,  Accompanying    1522  896 

Account,  Annual,  Accompanying    15:23  901 

Appraisers  of.  No  Division  of  Land    270  221 

Appraisers  of,  Inheritance  Tax   1525  9U3 

Dissenting,  One  Appraiser  by    oUO       233 

Bef exee — Examination  of  Account   1524  902 


10T2  INDEX 

BEQUEST.  No.     Page. 

Appointment — Executor,  Administrator  for 1534  913 

Inspection,  for    1169  697 

Sale,   Real  Estate,   of— Objections    153.5  913 

Sale,  Real  Estate,  of.  Objections  to 1536  914 

BESTITUTION.     See  Writ. 

Writ  of    1579  945 

EETITRN.     See  Account;   Affidavit;  Certificate;   Report. 

Affidavit    on    610  421 

Attachment  or  Execution — Levy  on  Credits,  etc.,  of .  . . .  1238  721 
Attachment,  or  Execution — Levy  on  Shares  in  Corpora- 
tion     1239  722 

Attachment   of  Personalty    1235  719 

Attachment  of  Personalty    1236  720 

Execution — No  Property  Found 1233  719 

Execution  Satisfied   1234  719 

General 1232  719 

Residence  of  Person — Service   at    1598  965 

Sale  of  Real  Estate 1237  720 

Search-warrant    1224  716 

Subpoena 1548  920 

Summons — On  Arrest   1229  718 

Summons    1230  718 

Summons  vs. — Corporation    1226  717 

Summons — County  or  City,  etc 1228  717 

Summons — County,  etc.,  of   1225  716 

Summons — Minor  Defendant,  of   1231  718 

REVIEW.     See  Order;   Petition;   Writ. 

Writ  of 1576  943 

SAUl.     See  Affidavit;   Notice;   Order;  Petition;   Return. 

Account  of    1526  904 

Accountof 1527  906 

Goodwill  of  Business   1599  966 

Real  Estate — Objections  to  1535  913 

Real  Estate — Objections  to  1536  914 

Real   Estate— Return   of    1237  720 

Real  Estate— Return  of  610  431 

SEARCH-WARRANT.     See  Affidavits;  Return;  Writ. 

Search-warrant   1572  931 

SOIiE  TRADER.     See  Affidavit;  Decree;  Petition. 

Aiadavit  to  Become    615  424 

Decree  Establishing    1037  624 

Petition  to  Become    1517  893 


INDEX  1073 

STIPUIiATION.  No.  Page. 

Case  Transferring 1537  914 

Deposition  to  Take   1538  915 

GENERAL  NOTE: 

Action    Transferred,    by    —  914 

Admissions   Made   at  the   Trial    —  016 

Admission  that  One   was   Made — Effect   of —  016 

Agreement — Stipulation  is —  91G 

Attorney,  Authority  to  Make —  916 

Attorney,  Only,   may  Stipulate —  016 

Client  Bound  by,  When   —  916 

Consideration  not  Always  Necessary —  916 

Depositions  Taken   bv    —  916 

Effect  of,  When  to  Take —  016 

Entered,  When    —  016 

Entry  of,  Time  to  be  Made —  916 

Estoppel,  as  to   —  916 

Executed  Agreements,  Under  —  916 

Execution  if.  Before  Objections  Made  not  Set  Aside  —  916 

Executory  Agreements,  by   —  916 

Failure  of  Consideration  for  —  916 

Filed  in  Court,  Effect,  Prior  Proceedings —  916 

Filed,  When   to   be    —  916 

Harmonious  Construction  of  Statute —  9' 6 

Irrevocable,   When    —  916 

Liberally  Construed —  916 

Minutes  to  be  Entered   on —  916 

Must  be  Filed  to  be  Binding —  916 

Nunc  Pro  Tunc  Entry  of —  916 

Open  Court,  Made  in 916 

Oral,  Admitted,  Effect  of —  916 

Oral,  Binding,  When   916 

Oral,  not  Binding  When    —  916 

Party  to   Action  and    —  916 

Proceedings  Waived  by  916 

Reliance  upon  the  Word  of  Reputable  Attorney...  —  916 

Repudiation  of   ~~  ^j^ 

Signed,  Must  be —  ^^ 

Testimony  as  to  Use  of ^ |^ 

Time  Extended  by    ~  ^ ^" 

SUBPOENA.     See    Acknowledgment   and   Proof   of   Instru- 
ments;   Affidavit;    Arbitration    and    Award;    Coroner. 

Affidavit — Attendance,  Nonresident,  of 1541  917 

Affidavit,   to   be    Indorsed— Original    Subpoena 1551  922 

Affidavit  of  Service    1542  918 

Application — Witness  to  Attend  to  i'rove  Execution  of 

Conveyance   1549  9-1 

Bring  Paper,  etc.,  to   1545  919 

Certificate  of  Service   1543  918 

Civil  Proceedings 1539  916 

Coroner's   1S4  143- 

New  Forms — 68 


1074  INDEX 

SUBPOENA — Continncd.  No.     Page. 

Coroner's    187  149 

Coroner's   193  151 

Criminal  Proceeding  in   1544  918 

Duces  Tecum — Civil   Proceedings    1546  920 

Nonresident,  Affidavit — Secure  Attendance 1541  917 

Order— To  Attend 1548  920 

Eetum  of    1548  920 

Service,  Affidavit  of   1542  918 

Service,  Certificate  of  1543  918 

Subpoena,   General    1242  723 

Subpoena,  General   1550  921 

Witness,    Application    for    to    Prove    Execution    of    a 

Writing 1549  921 

Witness  (Nonresident)    1540  917 

GENEEAL  NOTE: 

Affidavit  that  Nonresident,  a  Material  Witness....  —  919 

Blank  Issued   —  919 

Books  Brought  into  Court  b.y   —  919 

Clerk  of,  may  Issue    —  919 

Contempt   Proceeding   if   Disobeyed —  922 

Damage  for  not  Obeying    —  922 

Description   of   Books,    Papers,    etc.,    in i..  —  919 

District   Attorney    may    Issue —  919 

Duty  of  Notary  Public  to  Enforce  Obedience —  922 

Grand    Jury — Witness    for    —  919 

Indictment- — In  Support  of   —  919 

Information — In   Support   of    —  919 

Judges    of    Superior    Court    may    Issue,    Vv^hen —  919 

Justice  of  Supreme  Court  may  issue.  When —  919 

Magistrate   may   Issue    —  919 

Notary  Public's  Duty  to   Issue  and  Enforce —  922 

Officers  Who  may  Issue  in  Civil  Proceedings —  922 

Papers  Brought  into  Court  by —  919 

Peace  Officer  Serving  Must  Make   Written   Return  —  919 

Punishment  for  Disobedience  of   —  922 

Eeturning  Officers — Sheriff,  Constable,  Marshal,  and 

Policeman  of  a  Township,  City  or  Town —  919 

Eetum  of  Service  of    —  916 

Served  by  any  Person   —  919 

Service — How  Made    —  919 

Witness,  Nonresident  and   —  919 

Witness — Nonresident  Entitled  to  Expenses —  919 

Witness,  Nouresidence  not  Subject  to.  When —  919 

Witness,  Poor,  Entitled  to  His  Expenses   —  919 

SUMMONS.     See  Affidavit;  Notice;  Order. 

Condemnation   of   Land   (Eminent   Domain)    1553  923 

Coroner 's   185  149 

Forcible  Entry  and   Unlawful    Detainer — Gencr.i.l 1555  925 

General 1552  923 


INDEX  1075 

SUMMONS — Oontinnod.  No.  Page. 

Juror  of    1^56  928 

Juror — Coroner  's    ]  85  149 

Partition  of  Land    1',')^  9'2 4 

Served  by  Posting 1595  964 

SUPPLEMENTAL     PROCEEDINGS.     See     Affidavit;     Ex- 
ecutor; Order. 

Supplemental  Proceedings  to  Execution 590  410 

Supplemental  Proceedings  to  Execution 591  410 

Supplemental  Proceedings  to  Execution 1372  786 

SURETIES.     See  Affidavit;   Order. 

Justification  by — A  ffidavit    617  425 

Justification  by — Affidavit    618  425 

TENANT.     See  Demand;  Notice;  Lease. 

TIME.     See  Affidavit;  Notice;   Order. 

TRADEMARK.     See  Patents. 

Transfer  of   454  321 

TRUST.     See  Deed;   Mortgage  Notes. 

UNCLAIMED    DEPOSIT.     See    Affidavit;    Notice;    Order; 
Petition. 

UNDERTAKING.     See  Bail;  Bond. 

VENIRE. 

Certificate,  Clerk 's 1557  926 

Indorsement  on    1258  732 

Special    1558  927 

VERDICT. 

Verdict— Defendant    (or   Plaintiff)     1259  733 

Verdict — Defendant — Counterclaim    1260  733 

Verdict— Plaintiff    1261  73.*^ 

Verdict — Replevin— Defendant,   for    1264  734 

Verdict — Replevin — Defendant 1263  733 

Verdict— Replevin— Plaintiff    1202  733 

Verdict — Replevin — Specific  Portions  of  Property 1265  734 

Verdict — Replevin — Specific   Portions   of   Property 1268  735 

Verdict — Special  Issues  Submitted   1266  734 

Verdict — Special  Issues   12G7  735 

Verdict— Special    Issues     1269  735 

Verdict — Special  Issues   1270  736 

VERITICATION.     See  Affidavit. 

Action — Submission    Without   Controversy   in 1562  930 

Attorney,  Proceedings   to   Remove   or   Suspend 1.'6.'.  931 


1076  INDEX 

VERIFICATION— Continued.  No.     Page. 

Complaint  or  Answer  to 1559  927 

Complaint,  Other  than  Plaintiff,  by    1560  930 

Election  Contests  in  1561  930 

GENERAL  NOTE: 

Admissions  by   —  928 

Answer,  of —  92S 

Attorney  by    —  928 

Boards  of  Equalization  and   —  928 

* '  By   Oath, ' '   Requires   a   Positive   Statement   that 

the  Document  is  True    —  931 

Common  Law,  at  Meaning  of —  928 

Complaint   of    —  928 

Construction  of  by  Courts   —  922 

Construction  of  Words  in   —  929 

Form   of   Words — No    Particular   Form    —  929 

Highest    Class    of —  931 

Jurisdiction  of  Officer  Taking   —  929 

Knowledge,  Actual,  not  Necessary —  929 

"Knowledge    and    Belief" — Words    "and    Belief" 

are    Surplusage —  929 

Law  Class  of    —  930 

Legislative  Intention   as   to —  929 

Meaning  of  at  Common  Law —  938 

Officer  Acting  Within  His  Jurisdiction    —  939 

Pleadings,   of    —  928 

Presumption   of   Law  as   to —  929 

Quasi  Judicial  Functions  of  Officer  Taking —  929 

"Subscribed    and    Sworn    to"    Make    the    Entire 

Document  an  Affidavit   —  928 

Surplus   Words  in    —  929 

"Sworn  to"  as   —  928 

Unqualified  Good,  When —  929 

"Verified,"   Meaning   of    —  929 

'  *  Venue ' '  not  Necessary   —  928 

WAED.     See  Affidavit;  Notice;  Order;  Petition. 

Improperly    Supported    Affidavit     598  415 

■WARRANT.     See  Affidavit;  Order;   Writ. 

Arrest   1567  933 

Arrest   1271  736 

Bench — Indictment    or    Information    1565  932 

Coroner 's   186  149 

Indorsement,   Service   of    1566  933 

Search 1564  931 

Service — Indorsement  of    1272  737 

WILL.     See  Notice;  Order;  Petition. 

Alteration  of,  by  Codicil 550  382 

Applicant  on  Probate,  Testimony  of 1571  936 

Assignment  by  Trustees  to  New  Trustees 532  375 

Attestation   of    550  382 

Attestation  of    556  385 


INDEX,  1077 

WILL — Oontinnfd.  N^  Paec. 

Attestation  of 557  335 

Attestation  of 558  335 

Certificate  of  Ijoss   IfjBS  933 

Certificate,   Proof   of    15C9  934 

Charitable  Bequests 539  379 

Claim — Annuitant   not   to    Part    with   Annuity 541  380 

Clause — Annuity  in    553  264 

Clause — Annuity   in 528  374 

Clause — Annuity  in 534  37Q 

Clause — Annuit}'  in • 53^5  377 

Clause — Annuity  in   53^  373 

Clause — Annuity  in 54O  379 

Clause — Annuity  to  End  with  Its  Sale  or  Assignment..  541  380 

Clause — Bequests — Cimritable    539  379 

Clause — Descendants  to  Take  Maker's  Surname 518  368 

Clause — Disjxjsing  of  Property  with  Power  to  Sell....  514  366 

Clause — Devise  to  Trustees  with  Power  to  Sell 547  381 

Clause — Indemnity  of  Trustees   500  359 

Clause — Majority  of  Trustees  and  Executors  to  Decide.  546  381 

Clause — Marriages  not  Favored  if  Without  Consent...  527  373 

Clause — Marriages   not   Favored   if   Without   Consent..  528  374 

Clause — Poor  Prisoners  Remembered   537  373 

Clause — Power  to  Sell   514  355 

Clause — Power  to  Sell   515  36Q 

Clause — Power  to  Sell 547  331 

Clause — Second    Wife    may    Reside    in    Dwelling-house 

During  Widowhood    542  330 

Clause — Widowhood    of    Wife — During     540  379 

Clause — Wife   Claiming  Jointure   Takes   Nothing 535  377 

Clause — Wife    During   Widowhood,    to    540  379 

Clause — Wife  (Second)  During  Widowhood  may  Live  in 

Testator's  House   542  330 

Clause — Wife   may   Live   in   Decedent's   House 543  380 

Clause — Wife    Takes    Jewels    and    Furniture 533  373 

Codicil — With   Additional   Legacies 552  38."^ 

Codicil,  Altering — Conclusion  and  Attestation  Clauses..  550  382 

Codicil  to — Changing  a  Bequest   543  382 

Codicil,  Ratifying    549  333 

Codicil — Revoking   Appointment   of   Executor   and   Ai>- 

pointing  One   55I  333 

Codicil— Revoking  Legacy 553  333 

Concealed   1461  339 

Concerning  Disputes   534  j^ 

Contest   1568  938 

Contest   15€9  939 


1078  INDEX 

WIIiIj — Continued.  No.  Page. 

Contest    1572  937 

Contest    1573  939 

Contest    1574  942 

Debts  Collectible  not,  or  Outlawed  Forgiven 525  372 

Debt  Forgiven  of  Debtor  Molest  Execution  of  Will 526  372 

Debts    Forgiven    due    from    Relations 525  372 

Devise  to  Children  and  Trustees  Appointed 533  376 

Devise   to    Executor    530  375 

Disputes — Concerning 524  372 

Education,    Purposes,    for     530  374 

Estate  for  Life 517  368 

Executors  Appointed      545  381 

Executor  to — Devise  of  Remainder 531  375 

General    Disposition    of    Property,    Annuity    and    Other 

Bequests— Full    513  364 

"Holographic"    555  384 

Imprudent   Son  Remembered    529  374 

Investment   to   be   Made    516  367 

Jewels  and  Furniture  to  Testator 's  Wife 538  378 

Legacies,  Pecuniary    536  377 

Legatees  must  Live  in  Peace  and  not  Sue  Each  Other.  .  521  370 

Life  Estate   517  368 

Loss,  Certificate  of   1568  933 

Letters,   Contest   of  Petition   for    1570  942 

Marriage  without  Consent  of  Guardians    527  373 

Marriage   without   Consent   of   Guardians    528  374 

Minor  of,  Consent  to  Probate 1575  942 

Nuncupative    554  384 

Olographic    555  384 

Pecuniary   Legacies    536  377 

Prisoners  Remembered   537  378 

Probate  of.  Contest  and  Opposition    1593  939 

Proof,  Certificate  of   1569  934 

Ratification   of  by   Codicil    549  382 

Relations   Forgiven   Their   Debts    525  372 

Remainder   to   Trustees    517  360 

Residue   of   Estate   Disposed   of 544  380 

Residue  to  be  Invested  in  Stock 516  367 

Revocation  by  Codicil    553  383 

Revocation  of  Executor  and  Appointment  of  by  Codicil  551  383 

Simple  Form   512  362 

Son,  Imprudent,  Cot  Off   529  374 

Stock — Investmer,*   to,  Made  in    516  367 

Surname   of   Testator   to   be   Perpetuated 518  368 

Surviving  Trustee   to   Assign   to    New   Trustee 532  375 


INDEX.  1079 

WILL — rontinnod.  No.  Page. 

Testimony  of  Applicant  on  Probate 1571  936 

Testimony,   Witness   Stibseribing,   of    1570  935 

Trust    Money   Given,   upon    519  3r.9 

Trnstees  Appointed   514  366 

Trustees   Appointed    515  366 

Trustees  Appointed   516  367 

Trustees   Appointed    517  368 

Trustees  Appointed   519  369 

Trustees   Appointed    520  369 

Trustees  Appointed   522  370 

Trustees   Appointed    523  371 

Trustees  Appointed   530  374 

Trustees  Appointed   532  375 

Trustees  Appointed   533  370 

Trustees  Appointed 534  375 

Trustees  Appointed   546  381 

Trustees   Appointed    '  547  38I 

Trustees  Indemnified    520  369 

Trustees — New,  to  be  Appointed    522  370 

Trustees — New,  to  be  Appointed    523  371 

Trustees  to  Pay  Annuity   534  375 

Void,  Gifts  to  be,  if  Legatee  Sues  Other  Legatee 521  370 

Will,  Petition  to  Probate    1459  834 

Will,   Petition   to   Probate,    not   in   Possession   of   Peti- 
tioner    1460  836 

Will,  Petition  to  Probate  Foreign 1462  838 

WUl,  Petition  to  Probate  Lost   1464  839 

Will,  Petition  to  Probate  Nuncupative 1465  839 

Witness,  Testimony  of  Subscribing   1570  935 

GENERAL  NOTE: 

Acknowledgment  by  Testator    —  351 

Advancements  to  Children   —  359 

After-acquired  Children  not  Provided  for  by —  358 

After-acquired  Children  and  Succession  to  Parent 's 

Estate   —  358 

After-acquired   Lands   Pass   by   Unless    it    Appears 

that  Testator  Did  not  Intend  It  Should —  359 

Aged  Testator —  363 

Attested — Need   not   be,  When    —  353 

Attestation  of,  not  a  Proper  Ground  of  Contest  of  —  938 

Attorney  Consenting  to  Pmbato  of —  944 

Benevolent  Society  to  for  Charitable   Purtwses.  . .  .  —  360 

Burning  of —  354 

Canceling   —  354 

Capacity — Mental    —  363 

Capacity,  Testator,  of —  362 

Certificate    to.    Lost    and    Established —  734 

Certificate  of  Proof  of   —  934 

Certificate  of  Proof  Attached   to    —  935 


1080  INDEX 

WTLL— GENERAL  NOTE— Continued.  No.  Page. 

Charitable   Uses — One-third  of   Estate  only  Exeept  —  360 

Charitable  Uses  or  Purposes —  360 

Child  Conceived  Before  the  Death  of  Testator  but 
Born  After  Takes  the  Same  as  If  He  was  Alive 

at  Parent 's*  Death   —  360 

Child's   Omitted,   Share,   how  Selected —  358 

Children  After-acquired  and  not  Provided  for  Take 

as  Heirs  at  Law —  35S 

Children — Deceased   Child  of,  not  Provided   for   in  —  358 

Children's    Descendants    and    Advancements —  359 

Children    Omitted    from    —  358 

Children  Omitted  Intentionally   —  358 

Children  Provided  for,  in  Lifetime  of  Testator....  —  359 

Children  Share  Alike — All  Under —  360 

Children   Unprovided  for  Take  Nothing,  When....  —  359 

Codicil — Effect  on   —  3.53 

Codicil   Included  by —  319 

Codicil — Republication  by   —  353 

Codicil   Revoked   if   Will   is —  357 

Competency   of   Witness    —  352 

Conjoint  or  Mutual   —  352 

Contestant  is  Plaintiff  on  Contest —  938 

Contest  of —  938 

Contest  of — Competency   of  Maker  of —  938 

Contest — Trial   of    —  938 

Contracts    to    Convey    not    Canceled    by    Death    and 

Wm   _  356 

Conveyance — Effect  on —  3.56 

Corporations — Charitable    Purposes    for,    to —  360 

Corporation   and  Testamentary  Disposition —  351 

Courts,  Lawyers,  and  the  Words  "in  His  Lifetime"  —  934 
Death  of  Devisee  or  Legatee  of  a  Limited  Interest 

does    not    Cut    off    Remainders    —  361 

Death  of  Devisee  Prior  to  Devisor   —  359 

Debts  to  be  Paid  Under   —  350 

Declaration,  Testator,  by —  351 

Defendant — Petitioner  is —  938 

Delusion — Insane    —  363 

Demented  Person 's    —  349 

Descendants  of   Devisee   Take   Under   the   Same   as 

if  Ancestor  Divided  at  Death  of  Testator —  358 

"Descendants" — Word,  in.  Vests  Property  When. .  —  360 

Destroying    —  354 

Destruction  of,  Proved — How —  355 

Devisees — All  Contribute  to  Make  up  Pretermitted 

Child 's    Share    —  358 

Devises  and  Contracts  to  Convey  Land  Devised....  —  356 

Devise — Land   Conveys  all   Testator's  Estate,   of..  —  359 
Devise — Land   Conveys   all    Devisor's   Interest   Un- 
less it  Appears  that  He  did  not  Intend  to  do  so 

—Of : —  359 

Devisee  or  Legatee  Dying  During  Life  of  Testator, 

the  Testamentary  Disposition  Fails —  361 

Devises — Persons    or    Corporations,    for    Charitable 

Uses,   to    —  360 

Devise — Real    Property    of — Passes    All     the     Tes- 
tator 's  Estate,  When —  361 


liVUEJL  1081 

"WILL— GENTTRAL  NOTF — Continaed.  No.  Page. 

Devises,  Trust  in    —  360 

Donation,  Words  of —  360 

Due   Influence,   Proper    —  364 

Duplicate   Revoked,   How    —  355 

Duress — A  Ground  of  Contest,  of   —  938 

Duress — Revocation,  Under  —  350 

Educational    Corporations    may    Take    Under —  351 

Encumbrance  not  a   Revocation    —  356 

Estate,  the  Whole,  Milked,   to  Suckle  Pretermitted 

Child    —  358 

Execution    of    —  351 

Execution  of,  not  Due,  a  Ground  of  Contest —  938 

Facts    Found    at    Probate    of.    Certificate    of —  935 

False  Representations  Honestly  Made  to  Testator..  —  363 

' '  Family ' ' — Word,  in.  Vests  Property,  When —  ."560 

Feeble  Health  of  Testator —  363 

Foreign,  Valid  as  if  Made  in  State —  353 

Fraud,   Effecting    —  350 

Fraud,   a  Ground   of   Contest   of —  938 

Fraud,  in  the  Making  of    —  363 

Fraud — Revocation  and  Influence  of   —  350 

Future   Interests   and   Present,   Pass    by —  350 

Gift   Revoked  by,  if  Intention   is   Expressed —  350 

Gift  to  Witness   —  352 

Gifts,  in  View  of  Death —  350 

"Heirs"— Word   in,    Vests    Property,    When —  360 

"Heirs" — Word  in,  not  Necessary  to  Derive  a  Fee  —  361 

"Holographic"   and    "Olographic" —  351 

Holographic — Olographic,   What   are    —  352 

Husband's    Death    and    Widow's    Will — Revival...  —  356 
Inconsistent  Subsequent  Provisions  of  Writing  Re- 
voke Prior  Provisions,  When —  357 

Infirm   Testator    —  863 

Influence,  Undue    —  363 

"Inheritance" — Words    of,    in,    not    Necessary    to 

Devise  a  Pee   —  361 

*'In    His    Lifetime" — Words    Referring    to    Dead 

Man 's  Actions    —  934 

Ir.^ane  Delusion   —  363 

Intention  to  Burn,  Tear,  Cancel,  Obliterate,  Destroy 

01  Revoke —  354 

Inten,  -on  to  Revoke  Gift  Shown  by  Will —  350 

Interests  that  Pass  by   —  350 

Interpretai'on   of    —  361 

Intestacy  nut  Favored   —  361 

Intoxication — ' ":  stator  's —  363 

Issue — Marriage  Siibsequent  to  Their  Rights,  of .  . .  .  —  356 

"Issue" — Word  iu,  Vests  Property,  When —  360 

Judge's  Precautions  and  the  Words  "In  His  Life- 
time"      —  9.34 

Judicious  Use  of   Right  to   Make   a —  362 

Jury's  Idea  of  what  is  .Just,   Does  not  Govern....  —  362 

Law  Books  and  the  Words,  "In  His  Lifetime"....  —  934 

Law  Presumes  Capacity  to  Mi.lie —  349 


3082  INDEX. 

WTLL— GENERAL  NOTE— Continned.  No.  Page. 
Lawyers,    Courts,   and    the   Words,    "In    His   Life- 
time "    —  ^^ 

"Legal   Representatives" — Words   in,   Vests   Prop- 
erty, When    —  ^0 

Leerntoc  or  Devisee  Dying  During  Life  of  Testator, 

Testamentary    Disposition     Fails    —  361 

Liabiljty  of  Devisee —  ^^^ 

Literary  Ck)rporations  may  Take,  Under —  351 

Lost    Will,    Established    —  934 

Lover  Influenced  by  Mistress    —  36-t 

Marriage  and  Revocation  of  Will    —  356 

Married   Woman,   by    —  351 

Menace  Efifeeting —  350 

Menace  a  Ground  of  Contest  of —  938 

Menace — Revocation   Under    —  350 

Mental  Capacity  to  Make  is  Sufficient  in  Absence  of 

Fraud,  etc —  363 

Mental  Weakness  and  Testamentary    Capacity....  —  363 

Mistress '    Intluenee    Over    Lover    as    to —  364 

Modification  of  by  Codicil —  353 

Moral   Coercion    —  365 

Mutual   or   Conjoint —  352 

"Nearest    of    Kin" — Words,     in,    Vest    Property, 

vVhen    —  360 

"Nearest  Relations" — Words,   in,   Vests  Property, 

When    —  360 

"Next  of  Kin" — Words  in.  Vest  Property,  When.  —  360 

Nuncupative — Circumstances   Permitting    —  354 

Nuncupative — How  Proved   —  353 

Nuncupative — Neither   Declared   nor   Attested —  353 

Nuncupative — Probate  of —  354 

Nuncupative — Requisites    of     —  353 

Nuncupative — Writing,   not   in —  351 

Obliterating    —  354 

"Olographic"    and   "Holographic"    —  351 

Olographic — Holographic — What   are    —  552 

Omission  to  Provide  for  Children  in —  358 

Oral — Probate  of   —  354 

Oral— When    —  553 

"Personal  Representative" — Words,  in.  Vest  Prop- 
erty,  When    —  560 

Pleaders  and  the  Words  ' '  In  His  Lifetime  " —  934 

Precautious  Lawyer  and  the  Words  "In  His  Life- 
time"    —  934 

Presence — Testator,  When  Signed  or  Witnessed,  of  —  351 

Presumption — Law  as  to  Capacity  to  Make,  of. —  —  349 

Pretermitted   Children    —  358 

Prior — How,  When  Revoked  by  Subsequent —  355 

Probate   of — Consent   of   Attorney,   to    —  944 

Probate,    Oral,    of —  354 

Proof — Nuncupative,   of    —  354 

Property  Acquired  by   —  349 

Property — Possessing  Under — Taken  Subject  to  En- 
cumbrance      —  356 

Reason — Testator   UnaWe    to — Logieaily    (Satisfac- 
torily)   —  563 


356 
36S 


INDEX.  lf^'53 

WrU»— GENERAL  NOTE— Continued.  No.  Page. 

"Relations"— Word,   in,   Vests  Property,   Wlif-n...  —       360 
"Representatives" — Word,      in,      Vests      Property, 

When -       360 

Republii-ation  by  Codicil    —       3.j3 

Revival — Married    Woman 's,   of    —       356 

Revival   of,   Revoked    3o5 

Revived— When ~       355 

Revocation — Duplicate,  of 3r>.-> 

Revocation — Encumbrance,   not   by    —       3.56 

Revocation — Marriage,  by 3.^o 

Revocation — Marriage,  Issue  of  Marriage —       356 

Revocation — A  Question  of  Law  and  Fact,  is —       357 

Revocation  Revokes  Codicil   357 

Revocation — Subsequent,   by    3od 

Revocation — Unmarried    Woman's   of    356 

Revocation — Written,  of    3-J-t 

Revoked — Revised    3-jo 

Right  to  Make,  a —       362 

Rights    Under,    and    Contract    to    Convey    Devised 

Property   

Sanity — Presumption   of    

Scientific — Corporations  may  Take  Under —       3.51 

Second  Will  Destroyed,  Prior  may  be  Revived —       3.5.5 

Second  Will  Revoked  and  Revival  for.   Prior —       35.5 

Settlement  not  a  Revocatiou    357 

Signed,  to  be,  by  Maker,  or   —       3.51 

Signed   in  Presence  of  Witnesses 351 

Statement,   Specific,   of   Contents   of,   Lost —       ^3* 

Subscribed  at  the  End— Must  be —       3.51 

Subscribing    Witnesses — To     fol 

Subsequent — Its  Effect  upon  Prior —       3.0.-J 

Succession  to  Encumbered  Property  Under —       3i>7 

Succession   Passes   by    3-^0 

Tearing  of   —       ^of 

Technical  Words  in **"- 

Terms,  Express,  Devising  or  Denoting,  the  Tes- 
tator's Intent,  Pass  Everything  Clearly  Appar- 
ent He  Intended  Should  Pass —       3.59 

Testamentary  Capacity 36.i 

Testamentary  Capacity  and  Mental  Weakness —       3W 

TestamenUry  Disposition — Words  of —       360 

Testator — Capacity    of    36- 

Tctator  in  Feeble  Health,  Suffering  Under  Disease, 

A  ged  and  Infirm    

Testator  Influenced  by  False  Representation,  Nar- 
rator Believed  to  be  True 

Testator's    Intentions   Govern   When   Approved   by 

the  Court   —       353 

Testator's  Intoxication    —       36.t 

Testator's  Name  to.  Written  by  Witness —       353 

Testator's  Presence,  When  Signed  or  Witnessed —       351 

Testator  Unable  to  Reason  Logically  (Satisfactor- 
ily to  Contestants)    —       36."5 

Trust — Devises  in    360 

Uncle  and  His  Nephews  and  Nieces — No  Obligation 

to  Provide  for  Them —       36G 

Undue   InJinence   Affecting —       *J^ 


—  363 

—  363 


10S4  INDEX. 

WTLL— GENT:RAL  note— Continued.  No.  Page. 

Undue  Influence   —  363 

Undue   Influence   that  Destroys  Free   Will —  364 

Undue   Influence   a    Ground   of   Contest   of —  938 

Unmarried  Woman 's —  356 

Unnatural — Not  Disturbed  Except  for  Good  Reasons  —  363 

Unnaturalness  of    —  362 

Unsound  ]\rind,  Person  of  rrmj  Make — When —  349 

Vagary,  Fleeting^  not  Insane  Delusion —  363 

Valid  In   and  Out  of  State— Alade —  353 

Validity    of    as    a    Whole    Writing —  938 

"Vested,"  Whatever  is,  not  Devested  Until  a  Pre- 
scribed Contingency  Occurs —  361 

What   may   be    Acquired   by    —  349 

What    Passes    by     —  359 

Who  may  Make   —  350 

Who    may    Take    Under    —  351 

Who    may   be    Witness    to    —  352 

Wife 's  Influence  Over  Husband —  364 

Witnesses  to —  351 

Witness — Competency   of    —  352 

Witness — Gift    to —  352 

Witness,  Innocent,  Deprived  of  His  Inheritance  by 

His  and  Testator's  Ignorance  of  Law —  353 

Witness — Place  of  Eesidence  must  Write  with  His 

Name,  to    —  353 

Witnesses  to  Sign    —  351 

Witness  Takes   Under   as   Heir  at   Law  When   and 

What  Part   —  353 

Witness,   Who    may  be    —  352 

Witness  Writing  Testator's  Name  to   —  352 

Woman — Married,  by    —  351 

Writing  must  be  in,  When —  351 

Writing — Nuncupative   Reduced   to — When —  354 

Written — Revocation  of —  ^4 

WITNESS.  See  Acknowledgment  and  Proof  of  Instru- 
ments; Aflidavit;  Arrest;  Contempt;  Deposition;  No- 
tice;  Order;   Subpoena;  Will;   Writ. 

WEIT. 

Application   for    1581  948 

Arrest,  Witness    1584  953 

Assistance  of 1577  944 

Attachment  of    1583  952 

Habeas  Corpus   1580  946 

Juror,  Arrest 1585  953 

Mandamus — Alternative 1283  743 

Mandamus — Peremptory    1284  743 

Order — Transcript  to  be  Sent  up 1582  951 

Possession    1578  944 

Review    1576  943 

Restitution    1579  945 


INDEX  10S5 

WEITTEN  INSTRUMENT— ALTERATION   OF.  No.  Page. 

Written   Instrument — Alteration  of    1586  9o4 

GENERAL  NOTE: 

Account   Book — An   Instrument   in    Writing —  956 

Accounting   for    Q.'jG 

Acknowledgment,   Certificate  of    —  9r>7 

Additional  Names  by    9.08 

Appeal   Bond   and   Unauthorized   Change —  9.17 

Addition    of    Surety    not   Harmful —  957 

"Alteration,"    Meaning   of    —  955 

Attached  Writings —  9,j9 

Authority — Made   Without    —  95*5 

Blanks   Pilled    in    Forms 956,959 

Bond — Indemnity    —  956 

Bonds — Interlineation —  958 

Bond — Sureties    Released    by    —  957 

Books  of  Account  Changed    —  956 

Burden  of   Proof    957,  960 

Certificate   of   Acknowledgment,   Altered —  957 

Change  of  Meaning  in   —  954 

Changes    in    Books    of    Account —  956 

Checks  Altered   —  956 

Consent  of  Parties  to  Make    954,  956 

Contract    in    Writing    Altered    by    Other    Written 

Contract    or    by    Executed    Oral    Agreement....  —  954 

Consideration    Inserted    in    Note    —  958 

Contract   Varied   by    —  956 

Commercial  Paper  Altered    —  957 

Date  of  Note  in   —  958 

Deed   Changed  as  to  Description —  957 

Deeds,   Grants,   Conveyances,   in —  953 

Deed — Name   of   Grantee   Filled   in    —  960 

Demand   and   Notice    Waived   by    —  958 

Digests  of  Cases  and  the  Word  "Alteration"....  —  955 

Disinterested  Person  Making   —  956 

Duplicate   Copies   Altered    —  954 

Effect  of  Alterations —  955 

Erasures  in  Books   of  Record    —  955 

Erasure  in  Printed  Form    —  956 

Erasure    of    Memoranda    —  959 

Exhibits  Attached  to  Writing   —  959 

* '  Forged  Paper, ' '  Altered  Instrument  is —  957 

Forma — Blanks  Filled  in   —  956 

Form    No.    1586 — Good    in    California    without    ex- 
planation— Sedgwick  v.  Sedgwick,  56  Cal.   213..  —  955 

Gold  Clause  in  Note   —  958 

Guarantor  Relea.sed  by —  957 

Harmful,  Must  be —  957 

Husband  and  Wife — Aa  to  Them —  9.j8 

ludeiunity  Buuds    —  956 

Identity   Lost   by    —  956 

Indorsers  Discharged  by    —  956 

Innocently   Made    —  954 

Instrument  Annulled  by —  957 

Instrument  not  Affected  by,  When    —  955 

Instruments  Read  (Sometimes)  aa  They  Were  Prior 

to  Alteration —  955 


10S6  INDEX, 

WEITTEN    INSTRUMENT  —  AIiTERATION     OF  —  GEN- 
ERAL NOTE — Continued.  No.  Page. 

Integrity  of  Instmment  Destroyed    —  957 

Interest'    Blan':   Filled   by   Rate   of    —  956 

Joint    and    Several    Liability — Changed —  958 

Jury  to  Say  if  Alteration  has  been  Made —  957 

[                  Marginal  Notes  of  Alterations    —  955 

Marginal  Notes,  Their  Value   —  955 

Material  Change,  Unauthorized    —  957 

Materiality  of  is    for  Court  to  Decide —  957 

Meaning  not  Changed —  954 

Memoranda  Indorsed   on  Note   for  Identification..  —  959 

Mistake  Corrected   —  958 

Money  Paid  Under  may  be  Recovered —  957 

Names  A  dded   —  958 

Name  of  Payee  Changed   —  958 

Negligence  in  Connection  with   —  958 

Noting  Alterations — Effect  of   —  955 

Official  Bonds  of —  955 

Payee 's  Name  Changed   —  958 

Payee  Signing  Note    —  958 

Partnership    Books    Altered    —  956 

Presumption  as  to  When  Made   956,  957 

Printed  Forms,  in    —  956 

Prior  to  1872  (Before  the  Codes)    955,  956 

Producer  may  Show  How,  or  by  Whom  Alteration 

Avas   Made    —  954 

Producer    of    Writing    Apparently    Altered     After 

Execution   Must  Account  for  the  Alteration —  954 

Proof,  Burden  of   957,  960 

Promissory  Note,  Additional  Place  of  Payment....  —  958 

Promissory  Note — "Agent"  Added  to  Signature..  —  959 

i                   Promissory  Note — Amount  of —  959 

I  Promissory    Note    cannot    be    Altered    Except    by 

>                       Contract  in  Writing  or  Executed  Oral  Agreement  —  957 

Promissory  Note  as  a   Contract —  957 

Promissory  Note  a   Contract   in  Writing —  957 

Promissory    Note — Consideration    for    Inserted....  —  958 

Promissory  Note — Date  Altered    —  956 

Promissory  Note — Date  of    —  958 

Promissory  Note — Demand  and   Notice   Waived  by  —  958 

Promissory  Note — Erasure   of  Place  of  Payment..  —  958 

Promissory  Note — Gold   Clause   in    —  958 

Promissory  Note — Initial  Letter  to  Name  Added..  —  959 

Promissory  Note — Interest  Clause  —  958 

Promissory  INote — Memoranda  Added  on   Back....  —  959 

Promissory  Note — Memoranda  Erased   —  959 

Promissory  Note — Payee  Signing   —  958 

Promissory  Note — Place  of  Payment  Altered 956,  958,  959 

Promissory  Note — Rate  of  Interest —  959 

Promissory    Note — Residence    Added    to    Indorser's 

Name    —  959 

Promissory  Note — Signature  Altered   —  959 

Promissory     Note — ' '  Stub ' ' — In     Book     of     Blank 

Notes —  959 

Promissory     Note — "Surety"     Erased     After     In- 
dorser's or  Signer's  Name   —  959 

Promissory  Note — Time  Extended —  959 


INDEX,  1037 

WRITTEN     rNfb'TRTJMENT  —  AliTERATION     OF  —  GEN- 

EKAL  NOTE — Continiud.  Xo.  Page, 

Promissory  Note — Word  "Trustees"  Addfd    —  fjri9 

Recording  Altered  Instruments — Effect  of   —  955 

Refjarded  as  ' '  Forged   Paper  "   957 

Satisfactorily    Accounted  for    956 

Schedules   Attached   to 959 

Sedgwick  v.  Sedgwick,  56  Cal.  213,  Upholds — Form 

No.    15S6    _  g.f^s 

Signature  of  One  Name  to  Bond  Erased —  959 

Strangers  to  Instrument,  by   —  957 

Stub   in  Book  of  Blank  Notes    —  959 

Subsequent   to   Codes    955 

Substitution  of  Names  by —  95Jj 

Surety  Added  not  Harmful   —  957 

Tax  Deed — Altered  After  Execution    —  955 

Undertaking    (Bonds) — Interlineations    —  958 

Unauthorized  Change  and  Innocent  Holders —  957 

Writings  Attached  to  Inatxamentfl  —  959 


LAW  LIBRARY 

UNIVERJilTy  op  (  ALIFORNIA 

LOS  ANGELES 


UC  SOUTHERN  REGIONAL  Life 

"    II 


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